Bd and P Hotels (India) (P) Ltd. Vs. District Judge, Jhunjhunu and ors. - Court Judgment

Excerpt:
[ajit j. gunjal, j.] right to information act, 2005 - sections 2(h), 4(l)b, 18 - karnataka right to information (constitution of benches) rules, 2006 -i rule 4 - bangalore international airport limited, whether a public authority and substantially funded and a state under article 12 of the constitution of india - held, the definition of "public authority" is required to be read along with sub-clause (d)(i) and (ii) of section 2(h) of the rti act. sub-clause (i) would relate to a body owned, controlled or substantially financed and (ii) the non-government organization substantially financed, directly or indirectly by funds provided by the appropriate government. - since bodies owned by government have been mentioned separately, the words "controlled" and "substantially financed" will have to be assigned same meaning not covered by ownership. thus, it is evident that the intention of the parliament is to extent the scope' of the right to other organizations which are not owned by it. no words in an act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. therefore, it becomes necessary to consider a situation where an entity may be controlled by government without ownership or substantial finance. - the petitioner/bial is required to be construed as a public authority which is substantially financed either directly or indirectly by the funds provided by the appropriate government. - "substantially financed" is not defined in the rti act. what would the phrase "substantial" mean has to be understood in contradiction to the word trivial and where the funding is not trivial, to be ignored as pittance, the same would be substantial funding because it comes from public funds. it need not necessarily be by a cash flow but also by any other kind. hence, the petitioner/bial can be classified as a public authority and a non-government organization which is substantially financed directly and indirectly by funds provided by the appropriate government. and it is amenable to writ jurisdiction under article 226 of the constitution of india. - further held, if one were to hold that the petitioner/bial is a public authority and though a non-government organization, directly and indirectly funded, what would be the relief which the second respondent is entitled for. indeed, it is to be noticed that the second respondent has made an application seeking information under section 4 of the rti act. - since, the information which is sought by the second respondent pursuant to an application under section 4 of the rti act having been already available, that the impugned order, in the circumstances, does not warrant interference, inasmuch as, what has been directed by the commission is to publish or make available the information as contemplated under section 4 of the right to information act. (paras 17, 20, 22, 23, 25, 26) writ petition is rejected. 1. instant petition has been filed by m/s bd & p hotels (india) (p) ltd who was in possession of hotel mukandgarh resorts since 04/08/2009 on having purchased lease hold rights through respondent-6 (secured creditor) under securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 (sarfaesi act), but has been dispossessed on 09/03/2010 pursuant to warrant of possession issued by the executing court, jhunjhunu on 05/03/2010 in execution appl.no.35/2009) at the behest of decree holder in execution of arbitral award dt. 15/02/2009 passed for recovery of possession and arrears along with interest against its lessee (respondent-5), possession whereof was taken over by secured creditor (tfci-respondent-6) with whom lease hold rights were mortgaged creating security interest by respondent-5 with the consent of lessor (respondent-2 to 4) on 22/08/2008. question arising for consideration in instant case is as to whether petitioner in whose favour lease hold rights over mukandgarh property was transferred as an assignee of secured creditor (tfci) under sarfaesi act and after the possession was transferred, in absence of any conditions of lease being violated after having come into possession, could be dispossessed by executing court by issuance of warrant of possession impugned dt. 05/03/2010 in execution of arbitral award/ decree dt.15/02/2009 passed in arbitration proceedings between lessor (respondents-2 to 4) & original lessee (respondent-5), wherein indisputably neither secured creditor (tfci) nor its assignee (petitioner) at any point of time were heard, while the lessee (respondent-5) was not holding possession of the property on the date of arbitral award/decree (supra) on account of being dispossessed by secured creditors under sarfaesi act, in such situation, whether remedy lies to approach civil court for being dispossessed, by filing application u/s 47 cpc read with o.21, r.97 & 99, cpc or writ petition u/art.226 & 227 of the constitution is maintainable against warrant of possession impugned (supra). facts relevant for examining the controversy set forth are that hotel mukandgarh resorts situated at mukandgarh (mukandgarh property) was initially leased out by its owner (respondents-3 & 4) vide registered lease deed dt.25/09/1992 in favour of m/s mukundgarh resorts with a right to sub-lease pursuant to which, original lessee (m/s mukundgarh resorts) sub-leased mukangarh property in favour of m/s cross country hotels (p) ltd (respondent-5) for a period of 30 years w.e.f. 14/07/1992 on the terms & conditions vide registered lease deed dt. 13/10/1992. under cl.5 of lease deed, the lessee has an option to create encumbrances on lease hold rights possessed by them in favour of financial institution for loan/finances for development of the fort; and under the authority of cl.5 whereof besides consent (ann.r.6/1 & r.6/2) given by respondents-2 to 4 in 1993, mortgaged lease hold rights of mukandgarh property with respondent-6 (tfci) by creating security interest over the property. it appears that defaults were committed by the mortgagor (respondent no.5) in regard to the loan granted by respondent-6 (secured creditor); as such org. appl.-26/2000 was filed by secured creditor (respondent-6) before debts recovery tribunal, new delhi (drt) but pendente application, sarfaesi act 2002 came into force and thereafter notice dt.08/01/2003 u/s 13(2) of sarfaesi act was served calling upon respondent-5 to repay the amount within 60 days and since respondent-5 was unable to pay outstanding loan within stipulated period provided u/s 13(2) and pursuant to aforesaid notice, authorised officer of respondent-6 took possession of mukandgarh property on 22/08/2008 under sarfaesi act. possession being taken over (supra) was challenged by respondent-5 (borrower) by way of cwp-9609/2008 which was dismissed vide order dt.17/04/2009 observing that remedy of appeal lies u/s 17 of sarfaesi act. however, in compliance with security interest (enforcement) rules, 2002, the secured creditor (respondent-6) got possession notice published in times of india, new delhi (edn) dt.26/08/2008 & rajasthan patrika (edn) dt.27/08/2008. that apart, authorised officer also published notice for sale of lease hold rights of mukandgarh property besides other properties in economic times, n.delhi (edn) dt.16/06/2009 pursuant to which, petitioner tendered its bid for a sum of rs.two crores twenty lacs & one hundred vide letter dt.21/07/2009 which was over & above reserved price set out by respondent-6 and being successful bidder, sale certificate dt. 04/08/2009 (ann.8) as regards mukandgarh property was issued by respondent-6 in favour of petitioner pursuant to which possession was handed over to the petitioner on 04/08/2009 and either of respondents-2 to 5 has not raised objection at any stage. it has been further averred that after taking possession of mukandgarh property, huge money has been invested in renovation whereof by the petitioner. it has come on record that on 05/07/2005, legal notice was served by the lessor (respondent-2) calling upon m/s cross country hotels (lessee) to rectify the breaches within 3 months and terminated the lease by forfeiture & breaches on the part of the lessee. it will be pertinent to mention that at that time, lease hold rights were mortgaged with financial institution and security interest was created with the consent of lessor (respondent-2 to 4) but this material fact was not disclosed. on application being filed under arbitration act, sole arbitrator was appointed by the court vide order dt.15/09/2006 to decide the dispute of breaches being committed & determination of lease deed and after adjudication in course of arbitration proceedings in appl.35/2009, award was passed on 15/02/2009 in favour of respondents-2 to 4 for recovery of possession & arrears of rent along with interest from the judgment debtor (respondent-5); and in terms of s.36 of arbitration act, arbitral award was considered as a decree of civil court and pursuant to decree/award, application came to be filed before learned executing court and warrant of possession was issued on 05/03/2010 - in execution whereof, possession of mukandgarh property was taken over and the petitioner was dispossessed from mukandgarh property on 09/03/2010 impugned herein. it has also come on record that on 10/03/2010, m/s mukandgarh resorts (p) ltd sub-leased mukandgarh property vide registered lease deed and possession was handed over to respondent-7 who is presently in possession of the property in question.2. while issuing notices, this court vide order dt.15/03/2010 stayed operation of warrant of possession dt.05/03/2010 issued by learned executing court and it was further directed that the petitioner be continued in possession of the property in question. pursuant to ad interim order dt.15/03/2010, petitioner moved an application before the learned executing court for restoration of possession. however, executing court observed that since possession was handed over to the decree holder on 09/03/2010 in execution of artbitral award dt.15/02/2009; as such no further order can now be passed and petitioner may seek clarification from this court. since after possession being taken over while dispossessing petitioner through decree holder who further sub-leased mukand garh property in favour of respondent-7 (m/s silver city landmark (p) ltd), at this stage, an application was moved by respondent-7 seeking permission to implead as party respondent which was allowed by the court vide order dt.21/04/2010. however, when the matter came up on application filed by petitioner seeking direction for restoration of possession being arbitrarily taken over pursuant to warrant of possession dt.05/03/2010; at this stage, matter was finally heard at joint request.3. counsel for petitioner vehemently contended that the executing court being civil court has no jurisdiction in issuing warrant of possession dt.05/03/2010 pursuant to arbitral decree in regard to mukandgarh property as it was in clear contravention of ss.34 & 35 of sarfaesi act which exclusively bars jurisdiction of civil court in respect of any suit or proceedings under sarfaesi act. s.35 of act specifically over-rides other laws inconsistent with any other law in force; as such learned executing court exceeded in its jurisdiction to execute arbitral award dt.15/02/2009 in regard to mukandgarh property being subject matter under sarfaesi act and the petitioner being in possession of the property in question pursuant to public auction held under sarfaesi act and this fact was required to be taken note of by learned executing court before issuing warrant of possession impugned herein; such action of the learned executing court is wholly without jurisdiction. counsel further submits that lease hold rights being transferred in favour of petitioner under sarfaesi act as assignee of the secured creditor and in terms of s.13(6), it shall have the same effect as being transferred by owner of secured asset; and in instant case, transfer of lease hold rights in favour of petitioner would have to be construed as if made by respondents-2 to 4; as such once lease hold rights were transferred in favour of petitioner and in terms of sale certificate, petitioner came into possession of mukandgarh property on 04/08/2009, any purported subsequent lease created in favour of respondent-7 would not have any binding effect on the rights of petitioner. in support, counsel placed reliance upon decisions in saraswasti bai trimbak v. damodar d. motiwale (2002(4) scc 481); mardia chemicals v. union of india (air 2004 sc 2371), taking assistance whereof, counsel submits that once action has been taken on the basis of special act, acts of civil court are dehors of provisions of the act and the arbitral decree is un-executable qua the petitioner who is an assignee of secured creditor (tfci) under sarfaesi act. it has further been urged that lease hold rights were mortgaged by respondent-5 with respondent-6 in terms of cl.5 of lease deed with written consent of the respondents-2 to 4; as such right to resumption as is available with respondents-2 to 4 could not have been exercised terminating lease before its expiry without informing respondent-6 (secured creditors) & unless encumbrances are cleared, termination of lease was not permitted under the law. counsel further contends that arbitral award cannot prevail over proceedings under sarfaesi act and once possession of mukandgarh property was taken over by secured creditors on 22/08/2008 u/s 13(4) of sarfaesi act and lease hold rights were transferred to the petitioner as its assignee pursuant to sale certificate issued by secured creditor, only remedy lies with borrower/respondent-6 (original lessee) or by respondents-2 to 4 being party to creation of mortgage to take recourse as provided u/s 17 of sarfaesi act by approaching drt. in support, counsel placed reliance upon decision of delhi high court in kohinoor creations v. syndicate bank (2006 (132) co. cases 417). counsel for respondents-2 to 4 & 7 jointly submit that writ petition is not maintainable against warrant of possession dt. 05/03/2010 issued by executing court in execution of arbitral award dt.15/02/2009; and has supported the warrant of possession impugned. counsel further submit that warrant of possession was issued in execution proceedings u/o 21, cpc, against which only remedy available is to file objections u/s 47 read with o.21 rr.97 & 99, cpc before executing court. in support, counsel placed reliance upon decisions in ashan devi v. phulwari devi (air 2004 sc 511), ghanshyam das gupta v. anant kumar sinha (1991 (4) scc 379), shreenath v. rajesh (1998 (4) scc 543), metro marins v. bonus watch co. (p) ltd (2004 (2) wlc (sc) 705) and of this court in hanuman prasad v. municipal board uniara (1999(3) wlc 705). main thrust of respondents is that once arbitral award has not been challenged in instant proceedings and in execution thereof, warrant of possession impugned has been issued by executing court in favour of decree holder; the bar of s.34 of sarfaesi act which restrained civil court to entertain any suit or proceeding in respect of matter which drt or appellate tribunal is empowered under sarfaesi act, has no application in the facts of instant case. this court has considered rival contentions of counsel for the parties and with their assistance, examined material on record. before examining the controversy, it would be relevant to observe that the arbitral award dt.15/02/2009 passed by learned arbitrator for recovery of possession to the decree holder (lessor/ respondents-2 to 4) and arrears alongwith interest is not under challenge for being examined before this court and rightly so, since either party if aggrieved by arbitral award, objections could have been filed u/s 34 of the arbitration act. cls.5, 7(d) & 9 of lease deed dt. 13/10/1992 (ann.1) being relevant are quoted ad infra:5. that it has been agreed to that the lessee shall have a right to create encumbrances on the lease hold rights possessed by them in favour of any financial institution for loan/finances raised for the development of fort, subject to the condition that the encumbrances are cleared before the expiry/ termination of the lease period.7. the lessor herein covenants with the lessee as under:(d) to terminate the lease and enter upon the premises in case of breach of the agreed terms by giving prior notice of atleast 3 months provided the breach committed by the lessee is not rectified during the notice period.9. arbitration clause - both the parties have agreed to settle all their disputes in respect of this lease deed whether relating to the meaning or interpretation of any of the clauses or of tenancy itself in accordance with the arbitration act 1940 or any other statute in force.indisputably pursuant to registered lease deed dt.25/09/1992, original lessee - m/s mukandgarh resorts has a right to sub-lease the mukandgarh property - on the basis whereof, it was sub-leased by m/s mukangarh resorts in favour of m/s cross country hotels (respondent-5) for 30 years on the terms & conditions vide registered deed dt.13/10/1992. cl.5 & 7 whereof vested a right in favour of lessee (respondent-5) to create encumbrances on the lease hold rights possessed by them in favour of a financial institution for loan/finances raised for development of fort, with a condition that encumbrances are to be cleared before expiry/ termination of lease period. that apart, cl.7 (d) of lease deed dt.13/10/1992 (ann.1) further vested a right in favour of lessor to terminate the lease, itself, and enter upon the premises in case of breach of the agreed terms by three months prior notice provided the breaches allegedly committed by lessee are not rectified during notice period. while cl.9 of lease deed provides that in case there being any dispute in respect of lease deed either relating to meaning or interpretation of any of clauses or of tenancy, the same could have been settled by arbitration. in terms of cl.5 of lease deed, the lessee (respondent-5) after taking prior consent of lessors (respondents-2 to 4) mortgaged its lease hold rights of mukandgarh property with financial institution (tfci) as is evident from documents (ann.r6/1 - dt. 19/06/1993 duly supported by affidavit of lessors & ann.r6/2) placed by respondent-6 (tfci) on record wherein it has inter-alia intimated to lessee (m/s cross country hotels, respondent-5) that intimation would be given to secured creditor (tfci-respondent-6) before exercise of right of resumption of the property as contemplated in lease deed and three months' notice shall be substituted by six months notice as provided vide ann.r6/1 & r6/2. security interest was ultimately created by lessee (cross country hotels) on 06/09/1993 in favour of respondent-6 (tfci) by depositing its title deeds. at a later stage, when lessee committed defaults in making payment of outstanding loan through installments, as a result whereof, secured creditors (tfci) re-called the loan and a notice dt.08/01/2003 was duly served upon borrower-lessee (cross country hotels) u/s 13(2) of sarfaesi act calling upon to make payment of outstanding loan. however, after the procedure as provided under sarfaesi act, secured creditors (respondent-6) took possession of mukandgarh property on 22/08/2008. notice of taking possession was published in news papers including times of india & rajasthan patrika. thereafter secured creditors published notice regarding sale of lease hold rights of mukandgarh property on 16/06/2009 - in process whereof, present petitioner being highest bidder, its bid was accepted vide letter dt.22/07/2009 and being successful bidder, sale certificate dt. 04/08/2009 (ann.8) was issued by respondent-6 (tfci) in favour of petitioner; accordingly, possession of lease holds rights over mukandgarh property was handed over to petitioner, who indisputably, as assignee of secured creditors (tfci) took possession under sarfaesi act, to which indisputably, neither respondents-2 to 4 nor the borrower/lessee (m/s cross country hotels) raised objection at any stage; and lease holds rights of mukandgarh property were vested in favour of transferee (petitioner) through secured creditor (tfci) as contemplated u/s 13(6) of sarfaesi act. in other words, after taking possession of lease holds rights under s.13(4) by secured creditor (tfci), all rights stood vested in the transferee of mukandgarh property as if transferred by owner of the leased property as contemplated u/s 13(6) of sarfaesi act. thus, taking note of facts of instant case (supra), viz., after the secured creditor (tfci) having taken possession of secured asset (mukandgarh property) on 22/08/2008 and publication of public notice of taking possession (supra) so also notice for sale of secured asset widely circulated and after accepting the bid of petitioner in whose favour, sale certificate was issued, transferred possession of secured asset to the petitioner being assignee of secured creditor, it would be presumed that secured asset was transferred in favour of petitioner as if transfer being made by owner of secured asset, which in instant case certainly is lessor (respondents-2 to 4). much stress was laid by counsel for petitioner that ss.34 & 35 of sarfaesi act, civil court has no jurisdiction and there is statutory bar for civil court to examine proceedings initiated under sarfaesi act and if at all any party including borrower is aggrieved, remedy lies by filing appeal u/s 17 of sarfaesi act.s.34 of sarfaesi act reads ad infra: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 perusal of statutory provisions (supra) clearly depicts exclusion of jurisdiction of civil court in respect of matters being taken up before drt for adjudication under sarfaesi act, but that will not oust jurisdiction of civil court to examine inter-se civil rights of parties and it is very obvious because the drt or appellate tribunal is not the competent forum to adjudicate civil rights except rights covered under sarfaesi act; and if any one is aggrieved by process initiated by secured creditor under sarfaesi act, that certainly debars jurisdiction of civil court and remedy lies only u/s 17 of drt act for adjudication but all other civil rights of the inter-party are supposed to be adjudicated by civil court unless the parties have a recourse to any other informal forum of resolution of the dispute by choice. the scheme of the sarfaesi act as it now stands after the 2004 amendment for enforcement of security interest is that notwithstanding the provisions of section 69 or section 69-a of the transfer of property act, any security interest created in favour of a secured creditor may be enforced, without the intervention of the court or tribunal, in accordance with the provisions of the act. chapter iii of the act deals with enforcement of security interest and begins with section 13 - sub-sections (1) to (6) whereof being relevant are extracted ad infra:13. enforcement of security interest.-(1) notwithstanding anything contained in section 69 or section 69a of the transfer of property act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this act.(2) where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4).(3) the notice referred to in sub section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of nonpayment of secured debts by the borrower.(3a) if, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower. provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the debts recovery tribunal under section 17 or the court of district judge under section 17a.(4) in case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset;provided that the right to transfer by way of lease assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security or the debt;(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.(6) any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditors shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. the other relevant provision is section 17 included in chapter iii is quoted ad infra for a better understanding of the scheme of the act after the amendments effected:17. right to appeal.-(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 authorized 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 forty five days from the date on which such measure had been taken. provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.[explanation.- for the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the debts recovery tribunal under sub- section (1) of section 17.] [(2) the debts recovery tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this act and the rules made there under.(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 there under, and require restoration of the management of the business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditors as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order 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. (4) if, the debts recovery tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this act and the rules made there under, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub section (4) of section 13 to recover his secured debt. it is clear that while enacting sarfaesi act, basic object of legislature was to provide measures to regulate securitization and reconstruction of financial assets & enforcement of security interest; and it enables the banks & financial institutions to realise long term assets, manage problems of liquidity, assets liability mismatches and improve recovery by exercising powers to take possession of securities. the parliament has incorporated non-obstante clause in s.13 of sarfaesi act giving primacy to the right of secured creditor vis-a-vis other mortgagees who could exercise rights u/ss 69 or 69a of transfer of property act and a secured creditor can enforce security interest without intervention of the court or tribunal and if the borrower has created any mortgage of secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a receiver of the income the mortgaged property or any part thereof in a manner which may defeat the right of secured creditor to enforce security interest. to overcome the likely difficulty faced by secured creditor which may include bank/financial institution. however, it enables secured creditor (bank/ financial institution) not only to take possession of secured assets of the borrower, but also to take over management of the business of the borrower, including right to transfer by way of lease, assignment or sale for realising secured assets subject to the stipulations indicated in proviso to cl.(b) of s.13(4) of sarfaesi act. however, u/s 13(6) of sarfaesi act, any transfer of any secured asset after taking possession or taking over of management of the business u/s 13(4), by secured creditor vests in the transferee all rights in relation to secured assets as if transfer being made by owner of secured asset. after sale certificate being issued in favour of the buyer or auction purchase in the form given in appendix v to security interest (enforcement) rules, 2002, the authorised officer is competent to deliver possession in terms of r.9(9) of rules, 2002 free from all encumbrances known to the secured creditor or not known to the secured creditor. if any person or borrower feels aggrieved, s.17(1) of sarfaesi act refers to the right of appeal. s.17(3) provides that if drt as an appellate authority after having examined facts of the case concludes that any of the measures or post s.13(4) taken by secured creditor are not in accordance with provisions of sarfaesi act, the appellate authority can declare that the recourse taken to any one or more measures is invalid, and consequently, restore possession to the borrower and can also restore management of business of the borrower. scheme of s.13(4) read with s.17(3) of sarfaesi act clearly states that if the borrower is dispossessed, not in accordance with the provisions of sarfaesi act, then drt is entitled to put the clock back by restoring the status quo ante and thus a complete mechanism has been provided which enables the bank/financial institution to realise long terms assets without intervention of any court or tribunal. as regards principles relating to exclusion of jurisdiction of civil court, it has been examined by apex court in dhulabhai v. state of mp (air 1969 sc 78), which was further considered in 1988 (1) scc 681, air 2005 sc 2544 and by this court in mohanlal v. dwarka prasad (air 2007 raj.129).in dhulabhai v. state of mp (supra) the apex court summarized the principles relating to the exclusion of jurisdiction of civil courtsad infra:(a) where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. such provision, however, does not exclude those cases where the provisions of the particular act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure. (b) where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.3. where there is no express exclusion, the examination of the remedies and the scheme of the particular act to find out the intendment becomes necessary and the result of the inquiry may be decisive. in the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (c) challenge to the provisions of the particular act as ultra virus cannot be brought before tribunals constituted under that act. even the high court cannot go into that question on a revision or reference from the decision of the tribunals.(d) when the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. a writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the limitation act but it is not a compulsory remedy to replace a suit.(e) where the particular act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.(f) questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular act. in either case, the scheme of the particular act must be examined because it is a relevant enquiry. (g) an exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.a co-ordinate bench of this court after taking note of s.34 of sarfaesi act had occasion to examine similar like issue raised herein in mohan lal v. dwarka prasad (air 2007 rajasthan 129) ad infra:27. the up-shot of the above discussions is that following guidelines and directions emerge:-i)that while civil courts still remain appropriate forums and can continue to decide inter party civil rights in the cases involving civil rights of the parties like in the cases of partition, cancellation of sale deed, gift deed, right of pre-emption, redemption of mortgage etc and the bar contained in section 34 of the securitization act is not absolute and does not debar civil courts to entertain such suits, however, no suit or injunction in any civil court can be allowed to prohibit and debar the measures taken by banks and financial institutions under securitization act, 2002 or under r.d.b. act, 1993, except as specified below in para (ii). ii) in cases of partition suits of ancestral property owned by a hindu undivided family which has been mortgaged by one or more of the co-parceners, without other co-parceners being guarantors or borrowers the bank or financial institution, the bank, financial institution or debt recogery tribunal or otherwise alientate the said ancestral undivided property unless and until the sare of the particular borrower -co-parcener is determined at the instance of such borrower-co-oparcener or the bank, itself; iii) that the cut off date excluding the jurisdiction of the civil court in respect of measures specified u/s. 13 (4) of the securitization act is the date when such measures are taken after expiry of notice period u/s. 13 (2) of the act and after such cut off date no civil suit or injunction barring or prohibiting the right of the banks and financial institutions with respect to measures u/s. 13 (4) of the act can adversely affect the bank nor such injunction would be binding on the bank or financial institution. iv) from the said cut off date if any such third party has a pending claim or intends to claim his right, title or interest over the property, which is security of the bank or financial institution, the remedy opens for him before the debt recovery tribunal u/s. 17(1) of the r.d.b. act and he can raise his objection or bring it to the notice of the tribunal the fact of pendency of such civil suit and thereafter the tribunal shall decide such objection within 60 days, as stipulated in section 13 (5) of the act and hold either way as to whether a note to the effect of pending litigation has to be made by the bank or financial institution concerned in the conveyance deed, if any, executed in exercise of their powers u/s. 13 (4) of the act in favour of any third party. v) in case upon adjudication of right, title or interest of any third party in a civil suit is decreed in his favour, such party upon such decree becoming final, shall be entitled to follow the whole or the part of the property, which form security of the bank or the financial institution concerned and claim back either the suit property from the successor-in-title or to claim damages in the alternative for the same. vi) if in such civil suits filed for determination of civil rights between the parties including the borrower, who has mortgaged the suit property in whole or in part with the bank or financial institution, who have initiated steps u/s 13(4) of the act, the banks and financial institutions would be free to apply to the competent civil court and upon such application the bank or financial institution shall be deleted from the array of defendants and no injunction granted by the civil court would bind the bank or financial institution in respect of measures taken u/s 13 (4) of the act., except in the cases relating to partition of joint hindu undivided family ancestral property. from the principles (supra), it clearly emerges that after the enactment of sarfaesi act came into force on 17/12/2002, civil court can continue the suit for adjudicating inter-se civil rights of the parties - like partition, cancellation of sale deed, gift deed, right of pre-emption, redemption of mortgage etc., but determination of rights conferred under special law can be adjudicated only under special enactment and not by the civil court in view of a bar u/s 34 of sarfaesi act. scheme of the sarfaesi act has been examined by apex court in mardia chemicals vs. union of india (air 2004 sc 2371) ad infra:50. ...a full reading of section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a debt recovery tribunal or appellate tribunal is empowered to determine in respect of any action taken" or to be taken in pursuance of any power conferred under this act". that is to say the prohibition covers even matters which can be taken cognizance of by the debt recovery tribunal though no measure in that direction has so far been taken under sub-section (4) of section 13. it is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the tribunal. therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. the bar of civil court thus applies to all such matters which may be taken cognizance of by the debt recovery tribunal, apart from those matters in which measures have already been taken under sub-section (4) of section 13.51. however, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatso ever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of english mortgages.... afore quoted principles have consistently been followed by apex court in latter judgments, from which it clearly emerges that in regard to proceedings initiated under special law (sarfaesi act), jurisdiction of civil court is barred in regard to matters which a debt recovery tribunal or appellate tribunal is empowered to determine in relation to action taken or to be taken pursuant to any power conferred under sarfaesi act. it has further been observed by apex court that even in regard to proceedings initiated under sarfaesi act, there cannot be any absolute bar relating to jurisdiction of civil court which can be invoked, if action of secured creditor is allegedly fraudulent or claim may be so absurd and untenable requiring no probe whatsoever and only to such limited extent, jurisdiction of civil court can be invoked by the parties to the dispute, which is not the case of either of parties herein. in instant case, indisputably, petitioner came into possession as an assignee of secured creditor (tfci) upon sale certificate being issued under sarfaesi act - as a result of lease hold rights of mukandgarh property being transferred as if by owner of the property (lessor/respondent-2 to 4) and if the borrower (lessee-respondent-5) or lessor (respondents-2 to 4) are aggrieved at any point of time in regard to transfer of lease holds rights in favour of petitioner, remedy is available u/s 17 of sarfaesi act. in authorised officer, indian overseas bank v. ashok saw mills (air 2009 sc 2420) apex court examined the issue about jurisdiction of drt to consider/adjudicate in regard to a post s.13(4) events and while examining the question as to whether the drt has a jurisdiction to interfere with the action taken by secured creditor after the stage contemplated u/s 13(4) of sarfaesi act and taking note of scheme of sarfaesi act, observed ad infra:23. the intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the drt with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. the consequences of the authority vested in drt under sub-section (3) of section 17 necessarily implies that the drt is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of section 13(4) of the act. the legislature by including sub-section (3) in section 17 has gone to the extent of vesting the drt with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. resultantly, the submissions advanced by mr. gopalan and mr. altaf ahmed that the drt has no jurisdiction to deal with a post 13(4) situation, cannot be accepted. the dichotomy in the views expressed by the bombay high court and the madras high court has, in fact, been resolved to some extent in the mardia chemicals ltd.'s case (supra) itself and also by virtue of the amendments effected to sections 13 and 17 of the principal act. the liberty given by the learned single judge to the appellants to resist s.a.no.104 of 2007 preferred by the respondents before the drt on all aspects was duly upheld by the division bench of the high court and there is no reason for this court to interfere with the same.24. we are unable to agree with or accept the submissions made on behalf of the appellants that the drt had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under section 13(4) of the act. on the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of section 13 (4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the drt. (emphasis added)4. thus, post s.13(4) events can be adjudicated by tribunal u/s 17 of sarfaesi act. from the decisions (supra), it also establishes that civil court has jurisdiction in cases where dispute relates to inter se civil rights of private parties and it is not the case that the petitioner is a transferee of a judgment debtor (lessee-respondent-5) who was presumed to be aware of the proceedings before a court of law and so long as sale certificate issued by secured creditor stands, the arbitral decree cannot be executable against present petitioner & assignee of secured creditor to whom lease hold rights were transferred while creating encumbrances pursuant to cl.5 of lease deed dt.13/10/1992, came into possession pursuant to sale certificate issued by secured creditor u/s 13(6) of sarfaesi act as being transferred by the owner of the secured asset i.e. the lessor (respondents-2-4), against which if any person including borrower (respondent-5 lessee) felt aggrieved, remedy available was only to invoke s.17 of sarfaesi act under which drt has power to even restore possession upon the action taken under sarfaesi act. s.17(1) uses the word, "any person" which includes owner of secured asset as well as the borrower and the drt is empowered to restore possession to person aggrieved and adversely affected including the borrower. this court certainly finds substance in the submission made by the petitioner that rights conferred in favour of auction purchaser as an assignee of secured creditor to whom lease hold rights have been transferred with the consent of lessor (respondents-2 to 4) as contemplated u/s 13(6) of sarfaesi act, such rights could not have been divested in any proceedings other than by way of proceeding if intended to be initiated under sarfaesi act. taking note of scheme of sarfaesi act, even this court in mohan lal v. dwarka prasad (supra) observed that as regards secured assets under sarfaesi act mortgaged in favour of secured creditor upon being taken over by its assignee u/s 13(6) of sarfaesi act, despite all pending civil litigation qua such secured assets before civil court, claim of secured creditor under sarfaesi act cannot be defeated or otherwise frustrated; and any person including borrower if aggrieved against proceedings initiated under sarfaesi act can avail of remedy by getting rights over such secured assets adjudicated only by a mechanism provided u/s 17 of sarfaesi act. even the court further observed that even if civil disputes pendente before commencement of proceedings under sarfaesi act that too are subjected to the proceedings of drt and cannot be allowed to obstruct financial institution from taking possession of secured assets and liquidating for realization of its loan dues; however, insertion of s.35 in sarfaesi act was apparently to give unhindered operation to the rights of secured creditor qua financial assets against which amount has been lent to the borrower and it over-rides provisions of any other law for the time being in force. counsel for respondents-2 to 4 & 7 in whose favour, further lease has been created after dispossessing the petitioner pursuant to warrant of possession impugned, jointly submit that the lessor cannot be prevented from taking recourse to the law where the lessee was in breach of the conditions of lease deed. no doubt, in ordinary course, in case of breach being committed of terms & conditions of lease, an aggrieved party certainly could resort to a remedy provided under lease deed. but, factual matrix (supra) in instant case indisputably depict that the lessee (respondent-5) with the consent of lessor (respondents-2 to 4) created encumbrances on the strength of cl.5 of lease deed over lease hold rights in favour of financial institution (secured creditor) upon having borrowed loan amount for the development of leased property (mukandgarh hotels) and the borrower (lessee) indeed committed defaults in making repayment of borrowed amount - as a result whereof, secured creditor resorted to procedure u/s 13(4) for taking possession of lease hold rights over the mortgaged property (mukandgarh hotels) and transferred it u/s 13(6) as if having been transferred as owner of the secured asset; and the proceedings atleast against the assignee of secured creditor (mortgagee) could be initiated only u/s 17 of sarfaesi act and that protection has been provided u/s 34 read with s.35 which over-ride the effect of other law qua lessor/lessee (respondents-2 to 4 & 5) of the property being mortgaged in favour of secured creditor. in the facts of instant case (supra), recourse having been resorted/adopted by lessor for the alleged breaches being committed by lessee (respondent-5) of terms & conditions of the lease, if at all find favour with lessor, such a decree under the garb of arbitral award could not have been executable atleast against mortgagee (secured creditor) or its assignee (petitioner herein) being in possession of secured asset in whose favour lease hold rights of mortgaged property were transferred by mortgagee (secured creditor) on having resorted to the procedure under special law (sarfaesi act). while examining the inter-play between jurisdiction of specialized tribunal and of civil court, in saraswati trimbak gaikwad v. damodhar d. motiwale (2004(4) scc 481), apex court observed that if a decree being passed without considering statutory provisions barring jurisdiction of civil court, it must be subject to orders of appropriate authority in proceedings under the statute concerned; and that apart, in case a certificate being issued under special statute, against which decree of civil court cannot be executed, unless certificate issued under special statue is set aside. in the instant case, sale certificate issued under sarfaesi act at no point of time has been challenged, or modified or set aside, in absence whereof, petitioner in whose favour, once lease hold rights have been transferred being an assignee of secured creditor (mortgagee) under sarfaesi act as if being transferred as owner of the secured asset, could not have been dispossessed under the garb of warrant of possession in execution of arbitral award/decree dt.15/02/2009, without having resorted to procedure under sarfaesi act under which lease hold rights were transferred in favour of petitioner. further submission made by counsel for respondents is that the lessor (respondents-2 to 4) was wholly within its rights to terminate the lease against the lessee (respondent-5) and in entering into the leased property (mukandgarh hotels) upon the breach of agreed terms being committed by the lessee who failed to rectify the breaches notified during the notice period on the strength of cl.5 & 7(d) of lease deed. such a submission is of no substance for the reason that a conjoint reading of cl.5 & 7(d) of the lease deed makes it evident that after lease hold rights being mortgaged by the lessee (respondent-5) with the consent (ann.r6/1 & 6/2) given by the lessor (respondents-2 to 4), it could not have been terminated prior to the satisfaction of encumbrances created over lease hold rights in favour of the mortgagee (secured creditor-financial institution). it is not the case where the lessee pendent arbitral proceedings either created sub-lease or transferred lease hold rights to third party or created encumbrances over the property. in such a given situation, if a third party is in possession other than lessee over the property in question, there may be a justification for invoking inter-se civil rights by adopting method provided u/s 47 read with u/o 21 rr.97 & 99, cpc, as the case may be. but in instant case, where lease hold rights were transferred as assignee of secured creditors under sarfaesi act; and such transfer having been made as if by the owner of the secured asset could not have been divested by a decree holder without resorting to recourse provided u/s 17 of sarfaesi act. counsel for contesting respondents placed reliance upon decisions (supra) in support of their pleas basically on the principle that if the decree has been executed and possession has been handed over to the decree holder, any party if aggrieved thereto, having inter-se claim of decree holders or third party, the same could be adjudicated u/s 47 read with o.21 rr.97 & 99, cpc in terms of procedure provided under code of civil procedure pursuant to which, objections if filed before executing court shall be decided as a civil suit. since this court has already taken the view (supra) that the petitioner being assignee of secured creditor and lease hold rights were transferred by secured creditor as if owner of the property in terms of s.13(6) of sarfaesi act, any person including borrower if aggrieved by action initiated under sarfaesi act can have remedy resorted to u/s 17 of sarfaesi act, in such circumstances, the decisions cited on behalf of contesting respondents are of no assistance; and in considered opinion of this court, the petitioner could not have been dispossessed from mukandgarh property on 09/03/2010 pursuant to warrant of possession impugned dt. 05/03/2010 in execution of arbitral award/ decree dated 15/02/2009, which was not unexcitable qua the petitioner. once this court held (supra) that since lessor decree holder (respondents-2 to 4) could not have dispossessed the petitioner under the garb of arbitral award/decree dt. 15/02/2009, sub-lease created by the lessor (respondents-2 to 4) in favour of respondent-7 who was impleaded a party to the instant petition, cannot hold better rights than lessor himself; in such circumstances, such a sub-lease (supra) being created by lessor (respondents-2 to 4) would in no manner frustrate rights of petitioner for restoration of possession of mukandgarh property having been vested in its favour by virtue of sarfaesi act (supra) and accordingly it is held that the petitioner was unlawfully dispossessed through warrant of possession impugned herein. consequently, writ petition succeeds and is hereby allowed. warrant of possession dt.05/03/2010 impugned pursuant to which petitioner was dispossessed on 09/03/2010 is hereby quashed & set aside and the executing court is directed to restore possession of mukandgarh property in favour of petitioner. however, it is made clear that if any breach of conditions of the lease deed dt.13/10/1992 is committed after being put to possession, the parties to the lease will be at liberty to avail of remedy provided under the lease deed in accordance with law. no costs.

Judgment:
1. Instant petition has been filed by M/s BD & P Hotels (India) (P) Ltd who was in possession of Hotel Mukandgarh Resorts since 04/08/2009 on having purchased lease hold rights through respondent-6 (secured creditor) under Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (SARFAESI Act), but has been dispossessed on 09/03/2010 pursuant to warrant of possession issued by the Executing Court, Jhunjhunu on 05/03/2010 in Execution Appl.No.35/2009) at the behest of decree holder in execution of Arbitral Award dt. 15/02/2009 passed for recovery of possession and arrears along with interest against its lessee (respondent-5), possession whereof was taken over by secured creditor (TFCI-respondent-6) with whom lease hold rights were mortgaged creating security interest by respondent-5 with the consent of lessor (respondent-2 to 4) on 22/08/2008. Question arising for consideration in instant case is as to whether petitioner in whose favour lease hold rights over Mukandgarh property was transferred as an assignee of secured creditor (TFCI) under SARFAESI Act and after the possession was transferred, in absence of any conditions of lease being violated after having come into possession, could be dispossessed by Executing Court by issuance of warrant of possession impugned dt. 05/03/2010 in execution of Arbitral Award/ decree dt.15/02/2009 passed in arbitration proceedings between lessor (respondents-2 to 4) & original lessee (respondent-5), wherein indisputably neither secured creditor (TFCI) nor its assignee (petitioner) at any point of time were heard, while the lessee (respondent-5) was not holding possession of the property on the date of Arbitral Award/decree (supra) on account of being dispossessed by secured creditors under SARFAESI Act, in such situation, whether remedy lies to approach civil court for being dispossessed, by filing application U/s 47 CPC read with O.21, R.97 & 99, CPC or writ petition U/Art.226 & 227 of the Constitution is maintainable against warrant of possession impugned (supra). Facts relevant for examining the controversy set forth are that Hotel Mukandgarh Resorts situated at Mukandgarh (Mukandgarh property) was initially leased out by its owner (respondents-3 & 4) vide registered lease deed dt.25/09/1992 in favour of M/s Mukundgarh Resorts with a right to sub-lease pursuant to which, original lessee (M/s Mukundgarh Resorts) sub-leased Mukangarh Property in favour of M/s Cross Country Hotels (P) Ltd (respondent-5) for a period of 30 years w.e.f. 14/07/1992 on the terms & conditions vide registered lease deed dt. 13/10/1992. Under Cl.5 of lease deed, the lessee has an option to create encumbrances on lease hold rights possessed by them in favour of financial institution for loan/finances for development of the Fort; and under the authority of Cl.5 whereof besides consent (Ann.R.6/1 & R.6/2) given by respondents-2 to 4 in 1993, mortgaged lease hold rights of Mukandgarh property with respondent-6 (TFCI) by creating security interest over the property. It appears that defaults were committed by the mortgagor (respondent No.5) in regard to the loan granted by respondent-6 (secured creditor); as such Org. Appl.-26/2000 was filed by secured creditor (respondent-6) before Debts Recovery Tribunal, New Delhi (DRT) but pendente application, SARFAESI Act 2002 came into force and thereafter notice dt.08/01/2003 U/s 13(2) of SARFAESI Act was served calling upon respondent-5 to repay the amount within 60 days and since respondent-5 was unable to pay outstanding loan within stipulated period provided U/s 13(2) and pursuant to aforesaid notice, authorised officer of respondent-6 took possession of Mukandgarh property on 22/08/2008 under SARFAESI Act. Possession being taken over (supra) was challenged by respondent-5 (borrower) by way of CWP-9609/2008 which was dismissed vide order dt.17/04/2009 observing that remedy of appeal lies U/s 17 of SARFAESI Act. However, in compliance with security Interest (Enforcement) Rules, 2002, the secured creditor (respondent-6) got possession notice published in Times of India, New Delhi (Edn) dt.26/08/2008 & Rajasthan Patrika (Edn) dt.27/08/2008. That apart, authorised officer also published notice for Sale of lease hold rights of Mukandgarh Property besides other properties in Economic Times, N.Delhi (Edn) dt.16/06/2009 pursuant to which, petitioner tendered its bid for a sum of Rs.Two crores Twenty lacs & One hundred vide letter dt.21/07/2009 which was over & above reserved price set out by respondent-6 and being successful bidder, sale certificate dt. 04/08/2009 (Ann.8) as regards Mukandgarh property was issued by respondent-6 in favour of petitioner pursuant to which possession was handed over to the petitioner on 04/08/2009 and either of respondents-2 to 5 has not raised objection at any stage. It has been further averred that after taking possession of Mukandgarh property, huge money has been invested in renovation whereof by the petitioner. It has come on record that on 05/07/2005, legal notice was served by the lessor (respondent-2) calling upon M/s Cross Country Hotels (lessee) to rectify the breaches within 3 months and terminated the lease by forfeiture & breaches on the part of the lessee. It will be pertinent to mention that at that time, lease hold rights were mortgaged with financial institution and security interest was created with the consent of lessor (respondent-2 to 4) but this material fact was not disclosed. On application being filed under Arbitration Act, Sole Arbitrator was appointed by the Court vide order dt.15/09/2006 to decide the dispute of breaches being committed & determination of lease deed and after adjudication in course of arbitration proceedings in Appl.35/2009, Award was passed on 15/02/2009 in favour of respondents-2 to 4 for recovery of possession & arrears of rent along with interest from the judgment debtor (respondent-5); and in terms of S.36 of Arbitration Act, Arbitral Award was considered as a decree of civil court and pursuant to decree/Award, application came to be filed before learned Executing Court and warrant of possession was issued on 05/03/2010 - in execution whereof, possession of Mukandgarh property was taken over and the petitioner was dispossessed from Mukandgarh property on 09/03/2010 impugned herein. It has also come on record that on 10/03/2010, M/s Mukandgarh Resorts (P) Ltd sub-leased Mukandgarh property vide registered lease deed and possession was handed over to respondent-7 who is presently in possession of the property in question.

2. While issuing notices, this Court vide order dt.15/03/2010 stayed operation of warrant of possession dt.05/03/2010 issued by learned Executing Court and it was further directed that the petitioner be continued in possession of the property in question. Pursuant to ad interim order dt.15/03/2010, petitioner moved an application before the learned Executing Court for restoration of possession. However, Executing Court observed that since possession was handed over to the decree holder on 09/03/2010 in execution of Artbitral Award dt.15/02/2009; as such no further order can now be passed and petitioner may seek clarification from this court. Since after possession being taken over while dispossessing petitioner through decree holder who further sub-leased Mukand Garh property in favour of respondent-7 (M/s Silver City Landmark (P) Ltd), at this stage, an application was moved by respondent-7 seeking permission to implead as party respondent which was allowed by the Court vide order dt.21/04/2010. However, when the matter came up on application filed by petitioner seeking direction for restoration of possession being arbitrarily taken over pursuant to warrant of possession dt.05/03/2010; at this stage, matter was finally heard at joint request.

3. Counsel for petitioner vehemently contended that the Executing Court being Civil court has no jurisdiction in issuing warrant of possession dt.05/03/2010 pursuant to Arbitral decree in regard to Mukandgarh property as it was in clear contravention of Ss.34 & 35 of SARFAESI Act which exclusively bars jurisdiction of civil court in respect of any suit or proceedings under SARFAESI Act. S.35 of Act specifically over-rides other laws inconsistent with any other law in force; as such learned Executing court exceeded in its jurisdiction to execute Arbitral Award dt.15/02/2009 in regard to Mukandgarh property being subject matter under SARFAESI Act and the petitioner being in possession of the property in question pursuant to public auction held under SARFAESI Act and this fact was required to be taken note of by learned Executing court before issuing warrant of possession impugned herein; such action of the learned Executing Court is wholly without jurisdiction. Counsel further submits that lease hold rights being transferred in favour of petitioner under SARFAESI Act as assignee of the secured creditor and in terms of s.13(6), it shall have the same effect as being transferred by owner of secured asset; and in instant case, transfer of lease hold rights in favour of petitioner would have to be construed as if made by respondents-2 to 4; as such once lease hold rights were transferred in favour of petitioner and in terms of sale certificate, petitioner came into possession of Mukandgarh property on 04/08/2009, any purported subsequent lease created in favour of respondent-7 would not have any binding effect on the rights of petitioner. In support, Counsel placed reliance upon decisions in Saraswasti Bai Trimbak v. Damodar D. Motiwale (2002(4) SCC 481); Mardia Chemicals v. Union of India (AIR 2004 sC 2371), taking assistance whereof, Counsel submits that once action has been taken on the basis of Special Act, acts of civil court are dehors of provisions of the Act and the Arbitral decree is un-executable qua the petitioner who is an assignee of secured creditor (TFCI) under SARFAESI Act. It has further been urged that lease hold rights were mortgaged by respondent-5 with respondent-6 in terms of Cl.5 of lease deed with written consent of the respondents-2 to 4; as such right to resumption as is available with respondents-2 to 4 could not have been exercised terminating lease before its expiry without informing respondent-6 (secured creditors) & unless encumbrances are cleared, termination of lease was not permitted under the law. Counsel further contends that Arbitral Award cannot prevail over proceedings under SARFAESI Act and once possession of Mukandgarh property was taken over by secured creditors on 22/08/2008 U/s 13(4) of SARFAESI Act and lease hold rights were transferred to the petitioner as its assignee pursuant to sale certificate issued by secured creditor, only remedy lies with borrower/respondent-6 (original lessee) or by respondents-2 to 4 being party to creation of mortgage to take recourse as provided U/s 17 of SARFAESI Act by approaching DRT. In support, Counsel placed reliance upon decision of Delhi High Court in Kohinoor Creations v. Syndicate Bank (2006 (132) Co. Cases 417). Counsel for respondents-2 to 4 & 7 jointly submit that writ petition is not maintainable against warrant of possession dt. 05/03/2010 issued by Executing Court in execution of Arbitral Award dt.15/02/2009; and has supported the warrant of possession impugned. Counsel further submit that warrant of possession was issued in execution proceedings U/O 21, CPC, against which only remedy available is to file objections U/s 47 read with O.21 Rr.97 & 99, CPC before Executing Court. In support, Counsel placed reliance upon decisions in Ashan Devi v. Phulwari Devi (AIR 2004 SC 511), Ghanshyam Das Gupta v. Anant Kumar Sinha (1991 (4) SCC 379), Shreenath v. Rajesh (1998 (4) SCC 543), Metro Marins v. Bonus Watch Co. (P) Ltd (2004 (2) WLC (SC) 705) and of this Court in Hanuman Prasad v. Municipal Board Uniara (1999(3) WLC 705). Main thrust of respondents is that once arbitral Award has not been challenged in instant proceedings and in execution thereof, warrant of possession impugned has been issued by Executing Court in favour of decree holder; the bar of S.34 of SARFAESI Act which restrained civil court to entertain any suit or proceeding in respect of matter which DRT or Appellate Tribunal is empowered under SARFAESI Act, has no application in the facts of instant case. This Court has considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Before examining the controversy, it would be relevant to observe that the Arbitral Award dt.15/02/2009 passed by learned Arbitrator for recovery of possession to the decree holder (lessor/ respondents-2 to 4) and arrears alongwith interest is not under challenge for being examined before this Court and rightly so, since either party if aggrieved by Arbitral Award, objections could have been filed U/s 34 of the Arbitration Act. Cls.5, 7(d) & 9 of lease deed dt. 13/10/1992 (Ann.1) being relevant are quoted ad infra:

5. That it has been agreed to that the lessee shall have a right to create encumbrances on the lease hold rights possessed by them in favour of any financial institution for loan/finances raised for the development of fort, subject to the condition that the encumbrances are cleared before the expiry/ termination of the lease period.

7. The lessor herein covenants with the lessee as under:

(d) to terminate the lease and enter upon the premises in case of breach of the agreed terms by giving prior notice of atleast 3 months provided the breach committed by the lessee is not rectified during the notice period.

9. Arbitration Clause - Both the parties have agreed to settle all their disputes in respect of this lease deed whether relating to the meaning or interpretation of any of the clauses or of tenancy itself in accordance with the Arbitration Act 1940 or any other statute in force.

Indisputably pursuant to registered lease deed dt.25/09/1992, original lessee - M/s Mukandgarh Resorts has a right to sub-lease the Mukandgarh property - on the basis whereof, it was sub-leased by M/s Mukangarh Resorts in favour of M/s Cross country Hotels (respondent-5) for 30 years on the terms & conditions vide registered deed dt.13/10/1992. Cl.5 & 7 whereof vested a right in favour of lessee (respondent-5) to create encumbrances on the lease hold rights possessed by them in favour of a financial institution for loan/finances raised for development of Fort, with a condition that encumbrances are to be cleared before expiry/ termination of lease period. That apart, Cl.7 (d) of lease deed dt.13/10/1992 (Ann.1) further vested a right in favour of lessor to terminate the lease, itself, and enter upon the premises in case of breach of the agreed terms by three months prior notice provided the breaches allegedly committed by lessee are not rectified during notice period. While Cl.9 of lease deed provides that in case there being any dispute in respect of lease deed either relating to meaning or interpretation of any of clauses or of tenancy, the same could have been settled by arbitration. In terms of Cl.5 of lease deed, the lessee (respondent-5) after taking prior consent of lessors (respondents-2 to 4) mortgaged its lease hold rights of Mukandgarh property with financial institution (TFCI) as is evident from documents (Ann.R6/1 - dt. 19/06/1993 duly supported by affidavit of lessors & Ann.R6/2) placed by respondent-6 (TFCI) on record wherein it has inter-alia intimated to lessee (M/s Cross Country Hotels, respondent-5) that intimation would be given to secured creditor (TFCI-respondent-6) before exercise of right of resumption of the property as contemplated in lease deed and three months' notice shall be substituted by six months notice as provided vide Ann.R6/1 & R6/2. Security interest was ultimately created by lessee (Cross Country Hotels) on 06/09/1993 in favour of respondent-6 (TFCI) by depositing its title deeds. At a later stage, when lessee committed defaults in making payment of outstanding loan through installments, as a result whereof, secured creditors (TFCI) re-called the loan and a notice dt.08/01/2003 was duly served upon borrower-lessee (Cross Country Hotels) U/s 13(2) of SARFAESI Act calling upon to make payment of outstanding loan. However, after the procedure as provided under SARFAESI Act, secured creditors (respondent-6) took possession of Mukandgarh property on 22/08/2008. Notice of taking possession was published in news papers including Times of India & Rajasthan Patrika. Thereafter secured creditors published notice regarding sale of lease hold rights of Mukandgarh property on 16/06/2009 - in process whereof, present petitioner being highest bidder, its bid was accepted vide letter dt.22/07/2009 and being successful bidder, sale certificate dt. 04/08/2009 (Ann.8) was issued by respondent-6 (TFCI) in favour of petitioner; accordingly, possession of lease holds rights over Mukandgarh property was handed over to petitioner, who indisputably, as assignee of secured creditors (TFCI) took possession under SARFAESI Act, to which indisputably, neither respondents-2 to 4 nor the borrower/lessee (M/s Cross Country Hotels) raised objection at any stage; and lease holds rights of Mukandgarh property were vested in favour of transferee (petitioner) through secured creditor (TFCI) as contemplated U/s 13(6) of SARFAESI Act. In other words, after taking possession of lease holds rights under S.13(4) by secured creditor (TFCI), all rights stood vested in the transferee of Mukandgarh property as if transferred by owner of the leased property as contemplated U/s 13(6) of SARFAESI Act. Thus, taking note of facts of instant case (supra), viz., after the secured creditor (TFCI) having taken possession of secured asset (Mukandgarh property) on 22/08/2008 and publication of public notice of taking possession (supra) so also notice for sale of secured asset widely circulated and after accepting the bid of petitioner in whose favour, sale certificate was issued, transferred possession of secured asset to the petitioner being assignee of secured creditor, it would be presumed that secured asset was transferred in favour of petitioner as if transfer being made by owner of secured asset, which in instant case certainly is lessor (respondents-2 to 4). Much stress was laid by Counsel for petitioner that Ss.34 & 35 of SARFAESI Act, civil court has no jurisdiction and there is statutory bar for civil court to examine proceedings initiated under SARFAESI Act and if at all any party including borrower is aggrieved, remedy lies by filing appeal U/s 17 of SARFAESI Act.

S.34 of SARFAESI Act reads ad infra:

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 perusal of statutory provisions (supra) clearly depicts exclusion of jurisdiction of civil court in respect of matters being taken up before DRT for adjudication under SARFAESI Act, but that will not oust jurisdiction of civil court to examine inter-se civil rights of parties and it is very obvious because the DRT or appellate Tribunal is not the competent forum to adjudicate civil rights except rights covered under SARFAESI Act; and if any one is aggrieved by process initiated by secured creditor under SARFAESI Act, that certainly debars jurisdiction of civil court and remedy lies only U/s 17 of DRT Act for adjudication but all other civil rights of the inter-party are supposed to be adjudicated by civil court unless the parties have a recourse to any other informal forum of resolution of the dispute by choice. The scheme of the SARFAESI Act as it now stands after the 2004 Amendment for enforcement of security interest is that notwithstanding the provisions of Section 69 or Section 69-A of the Transfer of Property Act, any security interest created in favour of a secured creditor may be enforced, without the intervention of the Court or Tribunal, in accordance with the provisions of the Act. Chapter III of the Act deals with enforcement of security interest and begins with Section 13 - Sub-Sections (1) to (6) whereof being relevant are extracted ad infra:

13. Enforcement of security interest.-

(1) Notwithstanding anything contained in Section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4).

(3) The notice referred to in sub section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of nonpayment of secured debts by the borrower.

(3A) If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower. Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:

(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset;

Provided that the right to transfer by way of lease assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:

Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security or the debt;

(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.

(6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditors shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. The other relevant provision is Section 17 included in Chapter III is quoted ad infra for a better understanding of the scheme of the Act after the amendments effected:

17. Right to appeal.-

(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 authorized 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 forty five days from the date on which such measure had been taken. Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

[Explanation.- For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub- section (1) of section 17.] [(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made there under.

(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 there under, and require restoration of the management of the business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditors as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order 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. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made there under, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub section (4) of section 13 to recover his secured debt. It is clear that while enacting SARFAESI Act, basic object of legislature was to provide measures to regulate securitization and reconstruction of financial assets & enforcement of security interest; and it enables the Banks & financial institutions to realise long term assets, manage problems of liquidity, assets liability mismatches and improve recovery by exercising powers to take possession of securities. The Parliament has incorporated non-obstante clause in S.13 of SARFAESI Act giving primacy to the right of secured creditor vis-a-vis other mortgagees who could exercise rights U/Ss 69 or 69A of Transfer of Property Act and a secured creditor can enforce security interest without intervention of the Court or tribunal and if the borrower has created any mortgage of secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a Receiver of the income the mortgaged property or any part thereof in a manner which may defeat the right of secured creditor to enforce security interest. To overcome the likely difficulty faced by secured creditor which may include Bank/financial institution. However, it enables secured creditor (bank/ financial institution) not only to take possession of secured assets of the borrower, but also to take over management of the business of the borrower, including right to transfer by way of lease, assignment or sale for realising secured assets subject to the stipulations indicated in proviso to Cl.(b) of S.13(4) of SARFAESI Act. However, U/s 13(6) of SARFAESI Act, any transfer of any secured asset after taking possession or taking over of management of the business U/s 13(4), by secured creditor vests in the transferee all rights in relation to secured assets as if transfer being made by owner of secured asset. After sale certificate being issued in favour of the buyer or auction purchase in the form given in Appendix V to Security Interest (Enforcement) Rules, 2002, the authorised officer is competent to deliver possession in terms of R.9(9) of Rules, 2002 free from all encumbrances known to the secured creditor or not known to the secured creditor. If any person or borrower feels aggrieved, S.17(1) of SARFAESI Act refers to the right of appeal. S.17(3) provides that if DRT as an appellate authority after having examined facts of the case concludes that any of the measures or post S.13(4) taken by secured creditor are not in accordance with provisions of SARFAESI Act, the appellate authority can declare that the recourse taken to any one or more measures is invalid, and consequently, restore possession to the borrower and can also restore management of business of the borrower. Scheme of S.13(4) read with S.17(3) of SARFAESI Act clearly states that if the borrower is dispossessed, not in accordance with the provisions of SARFAESI Act, then DRT is entitled to put the clock back by restoring the status quo ante and thus a complete mechanism has been provided which enables the Bank/financial institution to realise long terms assets without intervention of any court or Tribunal. As regards principles relating to exclusion of jurisdiction of civil court, it has been examined by Apex Court in Dhulabhai v. State of MP (AIR 1969 SC 78), which was further considered in 1988 (1) SCC 681, AIR 2005 SC 2544 and by this Court in Mohanlal v. Dwarka Prasad (AIR 2007 Raj.129).

In Dhulabhai v. State of MP (supra) the Apex Court summarized the principles relating to the exclusion of jurisdiction of civil courtsad infra:

(a) Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure. (b) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

3. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (c) Challenge to the provisions of the particular Act as ultra virus cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.

(d) When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(f) Questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. (g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

A co-ordinate Bench of this Court after taking note of S.34 of SARFAESI Act had occasion to examine similar like issue raised herein in Mohan Lal v. Dwarka Prasad (AIR 2007 Rajasthan 129) ad infra:

27. The up-shot of the above discussions is that following guidelines and directions emerge:-

i)That while Civil Courts still remain appropriate forums and can continue to decide inter party civil rights in the cases involving civil rights of the parties like in the cases of partition, cancellation of sale deed, gift deed, right of pre-emption, redemption of mortgage etc and the bar contained in Section 34 of the Securitization Act is not absolute and does not debar Civil Courts to entertain such suits, however, no suit or injunction in any Civil Court can be allowed to prohibit and debar the measures taken by banks and financial institutions under Securitization Act, 2002 or under R.D.B. Act, 1993, except as specified below in para (ii). ii) In cases of partition suits of ancestral property owned by a Hindu Undivided Family which has been mortgaged by one or more of the co-parceners, without other co-parceners being guarantors or borrowers the Bank or financial institution, the Bank, financial institution or Debt recogery Tribunal or otherwise alientate the said ancestral undivided property unless and until the sare of the particular borrower -co-parcener is determined at the instance of such borrower-co-oparcener or the Bank, itself; iii) That the cut off date excluding the jurisdiction of the Civil Court in respect of measures specified U/s. 13 (4) of the Securitization Act is the date when such measures are taken after expiry of notice period U/s. 13 (2) of the Act and after such cut off date no civil suit or injunction barring or prohibiting the right of the banks and financial institutions with respect to measures U/s. 13 (4) of the Act can adversely affect the bank nor such injunction would be binding on the bank or financial institution. iv) From the said cut off date if any such third party has a pending claim or intends to claim his right, title or interest over the property, which is security of the bank or financial institution, the remedy opens for him before the Debt Recovery Tribunal U/s. 17(1) of the R.D.B. Act and he can raise his objection or bring it to the notice of the Tribunal the fact of pendency of such civil suit and thereafter the Tribunal shall decide such objection within 60 days, as stipulated in Section 13 (5) of the Act and hold either way as to whether a note to the effect of pending litigation has to be made by the bank or financial institution concerned in the conveyance deed, if any, executed in exercise of their powers U/s. 13 (4) of the Act in favour of any third party. v) In case upon adjudication of right, title or interest of any third party in a civil suit is decreed in his favour, such party upon such decree becoming final, shall be entitled to follow the whole or the part of the property, which form security of the bank or the financial institution concerned and claim back either the suit property from the successor-in-title or to claim damages in the alternative for the same. vi) If in such civil suits filed for determination of civil rights between the parties including the borrower, who has mortgaged the suit property in whole or in part with the bank or financial institution, who have initiated steps U/s 13(4) of the Act, the banks and financial institutions would be free to apply to the competent Civil Court and upon such application the bank or financial institution shall be deleted from the array of defendants and no injunction granted by the Civil Court would bind the bank or financial institution in respect of measures taken U/s 13 (4) of the Act., except in the cases relating to partition of Joint Hindu Undivided family ancestral property. From the principles (supra), it clearly emerges that after the enactment of SARFAESI Act came into force on 17/12/2002, civil court can continue the suit for adjudicating inter-se civil rights of the parties - like partition, cancellation of sale deed, gift deed, right of pre-emption, redemption of mortgage etc., but determination of rights conferred under special law can be adjudicated only under special enactment and not by the civil court in view of a bar U/s 34 of SARFAESI Act. Scheme of the SARFAESI Act has been examined by Apex Court in Mardia Chemicals vs. Union of India (AIR 2004 SC 2371) ad infra:

50. ...A full reading of section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken" or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13.

51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatso ever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages.... Afore quoted principles have consistently been followed by Apex Court in latter judgments, from which it clearly emerges that in regard to proceedings initiated under special law (SARFAESI Act), jurisdiction of civil court is barred in regard to matters which a Debt Recovery Tribunal or Appellate Tribunal is empowered to determine in relation to action taken or to be taken pursuant to any power conferred under SARFAESI Act. It has further been observed by Apex court that even in regard to proceedings initiated under SARFAESI Act, there cannot be any absolute bar relating to jurisdiction of civil court which can be invoked, if action of secured creditor is allegedly fraudulent or claim may be so absurd and untenable requiring no probe whatsoever and only to such limited extent, jurisdiction of civil court can be invoked by the parties to the dispute, which is not the case of either of parties herein. In instant case, indisputably, petitioner came into possession as an assignee of secured creditor (TFCI) upon sale certificate being issued under SARFAESI Act - as a result of lease hold rights of Mukandgarh property being transferred as if by owner of the property (lessor/respondent-2 to 4) and if the borrower (lessee-respondent-5) or lessor (respondents-2 to 4) are aggrieved at any point of time in regard to transfer of lease holds rights in favour of petitioner, remedy is available U/s 17 of SARFAESI Act. In Authorised Officer, Indian Overseas Bank v. Ashok Saw Mills (AIR 2009 SC 2420) Apex Court examined the issue about jurisdiction of DRT to consider/adjudicate in regard to a post S.13(4) events and while examining the question as to whether the DRT has a jurisdiction to interfere with the action taken by secured creditor after the stage contemplated U/s 13(4) of SARFAESI Act and taking note of scheme of SARFAESI Act, observed ad infra:

23. The intention of the legislature is, therefore, clear that while the Banks and Financial Institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. The consequences of the authority vested in DRT under Sub-Section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The Legislature by including Sub-Section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr. Gopalan and Mr. Altaf Ahmed that the DRT has no jurisdiction to deal with a post 13(4) situation, cannot be accepted. The dichotomy in the views expressed by the Bombay High Court and the Madras high Court has, in fact, been resolved to some extent in the Mardia Chemicals Ltd.'s case (supra) itself and also by virtue of the amendments effected to Sections 13 and 17 of the principal Act. The liberty given by the learned Single Judge to the appellants to resist S.A.No.104 of 2007 preferred by the respondents before the DRT on all aspects was duly upheld by the Division Bench of the High Court and there is no reason for this Court to interfere with the same.

24. We are unable to agree with or accept the submissions made on behalf of the appellants that the DRT had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13 (4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT. (Emphasis added)

4. Thus, post S.13(4) events can be adjudicated by Tribunal U/s 17 of SARFAESI Act. From the decisions (supra), it also establishes that civil court has jurisdiction in cases where dispute relates to inter se civil rights of private parties and it is not the case that the petitioner is a transferee of a judgment debtor (lessee-respondent-5) who was presumed to be aware of the proceedings before a court of law and so long as sale certificate issued by secured creditor stands, the Arbitral decree cannot be executable against present petitioner & assignee of secured creditor to whom lease hold rights were transferred while creating encumbrances pursuant to Cl.5 of lease deed dt.13/10/1992, came into possession pursuant to sale certificate issued by secured creditor U/s 13(6) of SARFAESI Act as being transferred by the owner of the secured asset i.e. the lessor (respondents-2-4), against which if any person including borrower (respondent-5 lessee) felt aggrieved, remedy available was only to invoke S.17 of SARFAESI Act under which DRT has power to even restore possession upon the action taken under SARFAESI Act. S.17(1) uses the word, "any person" which includes owner of secured asset as well as the borrower and the DRT is empowered to restore possession to person aggrieved and adversely affected including the borrower. This court certainly finds substance in the submission made by the petitioner that rights conferred in favour of auction purchaser as an assignee of secured creditor to whom lease hold rights have been transferred with the consent of lessor (respondents-2 to 4) as contemplated U/s 13(6) of SARFAESI Act, such rights could not have been divested in any proceedings other than by way of proceeding if intended to be initiated under SARFAESI Act. Taking note of scheme of SARFAESI Act, even this Court in Mohan Lal v. Dwarka Prasad (supra) observed that as regards secured assets under SARFAESI Act mortgaged in favour of secured creditor upon being taken over by its assignee U/s 13(6) of SARFAESI Act, despite all pending civil litigation qua such secured assets before civil court, claim of secured creditor under SARFAESI Act cannot be defeated or otherwise frustrated; and any person including borrower if aggrieved against proceedings initiated under SARFAESI Act can avail of remedy by getting rights over such secured assets adjudicated only by a mechanism provided U/s 17 of SARFAESI Act. Even the Court further observed that even if civil disputes pendente before commencement of proceedings under SARFAESI Act that too are subjected to the proceedings of DRT and cannot be allowed to obstruct financial institution from taking possession of secured assets and liquidating for realization of its loan dues; however, insertion of S.35 in SARFAESI Act was apparently to give unhindered operation to the rights of secured creditor qua financial assets against which amount has been lent to the borrower and it over-rides provisions of any other law for the time being in force. Counsel for respondents-2 to 4 & 7 in whose favour, further lease has been created after dispossessing the petitioner pursuant to warrant of possession impugned, jointly submit that the lessor cannot be prevented from taking recourse to the law where the lessee was in breach of the conditions of lease deed. No doubt, in ordinary course, in case of breach being committed of terms & conditions of lease, an aggrieved party certainly could resort to a remedy provided under lease deed. But, factual matrix (supra) in instant case indisputably depict that the lessee (respondent-5) with the consent of lessor (respondents-2 to 4) created encumbrances on the strength of Cl.5 of lease deed over lease hold rights in favour of financial institution (secured creditor) upon having borrowed loan amount for the development of leased property (Mukandgarh Hotels) and the borrower (lessee) indeed committed defaults in making repayment of borrowed amount - as a result whereof, secured creditor resorted to procedure U/s 13(4) for taking possession of lease hold rights over the mortgaged property (Mukandgarh Hotels) and transferred it U/s 13(6) as if having been transferred as owner of the secured asset; and the proceedings atleast against the assignee of secured creditor (mortgagee) could be initiated only U/s 17 of SARFAESI Act and that protection has been provided U/s 34 read with S.35 which over-ride the effect of other law qua lessor/lessee (respondents-2 to 4 & 5) of the property being mortgaged in favour of secured creditor. In the facts of instant case (supra), recourse having been resorted/adopted by lessor for the alleged breaches being committed by lessee (respondent-5) of terms & conditions of the lease, if at all find favour with lessor, such a decree under the garb of Arbitral Award could not have been executable atleast against mortgagee (secured creditor) or its assignee (petitioner herein) being in possession of secured asset in whose favour lease hold rights of mortgaged property were transferred by mortgagee (secured creditor) on having resorted to the procedure under special law (SARFAESI Act). While examining the inter-play between jurisdiction of specialized Tribunal and of civil court, in Saraswati Trimbak Gaikwad v. Damodhar D. Motiwale (2004(4) SCC 481), Apex Court observed that if a decree being passed without considering statutory provisions barring jurisdiction of civil court, it must be subject to orders of appropriate authority in proceedings under the statute concerned; and that apart, in case a certificate being issued under special statute, against which decree of civil court cannot be executed, unless certificate issued under special statue is set aside. In the instant case, sale certificate issued under SARFAESI Act at no point of time has been challenged, or modified or set aside, in absence whereof, petitioner in whose favour, once lease hold rights have been transferred being an assignee of secured creditor (mortgagee) under SARFAESI Act as if being transferred as owner of the secured asset, could not have been dispossessed under the garb of warrant of possession in execution of Arbitral Award/decree dt.15/02/2009, without having resorted to procedure under SARFAESI Act under which lease hold rights were transferred in favour of petitioner. Further submission made by Counsel for respondents is that the lessor (respondents-2 to 4) was wholly within its rights to terminate the lease against the lessee (respondent-5) and in entering into the leased property (Mukandgarh Hotels) upon the breach of agreed terms being committed by the lessee who failed to rectify the breaches notified during the notice period on the strength of Cl.5 & 7(d) of lease deed. Such a submission is of no substance for the reason that a conjoint reading of Cl.5 & 7(d) of the lease deed makes it evident that after lease hold rights being mortgaged by the lessee (respondent-5) with the consent (Ann.R6/1 & 6/2) given by the lessor (respondents-2 to 4), it could not have been terminated prior to the satisfaction of encumbrances created over lease hold rights in favour of the mortgagee (secured creditor-financial institution). It is not the case where the lessee pendent arbitral proceedings either created sub-lease or transferred lease hold rights to third party or created encumbrances over the property. In such a given situation, if a third party is in possession other than lessee over the property in question, there may be a justification for invoking inter-se civil rights by adopting method provided U/s 47 read with U/O 21 Rr.97 & 99, CPC, as the case may be. But in instant case, where lease hold rights were transferred as assignee of secured creditors under SARFAESI Act; and such transfer having been made as if by the owner of the secured asset could not have been divested by a decree holder without resorting to recourse provided U/s 17 of SARFAESI Act. Counsel for contesting respondents placed reliance upon decisions (supra) in support of their pleas basically on the principle that if the decree has been executed and possession has been handed over to the decree holder, any party if aggrieved thereto, having inter-se claim of decree holders or third party, the same could be adjudicated U/s 47 read with O.21 Rr.97 & 99, CPC in terms of procedure provided under Code of Civil Procedure pursuant to which, objections if filed before Executing Court shall be decided as a civil suit. Since this Court has already taken the view (supra) that the petitioner being assignee of secured creditor and lease hold rights were transferred by secured creditor as if owner of the property in terms of S.13(6) of SARFAESI Act, any person including borrower if aggrieved by action initiated under SARFAESI Act can have remedy resorted to U/s 17 of SARFAESI Act, in such circumstances, the decisions cited on behalf of contesting respondents are of no assistance; and in considered opinion of this Court, the petitioner could not have been dispossessed from Mukandgarh property on 09/03/2010 pursuant to warrant of possession impugned dt. 05/03/2010 in execution of Arbitral Award/ decree dated 15/02/2009, which was not unexcitable qua the petitioner. Once this Court held (supra) that since lessor decree holder (respondents-2 to 4) could not have dispossessed the petitioner under the garb of Arbitral Award/decree dt. 15/02/2009, sub-lease created by the lessor (respondents-2 to 4) in favour of respondent-7 who was impleaded a party to the instant petition, cannot hold better rights than lessor himself; in such circumstances, such a sub-lease (supra) being created by lessor (respondents-2 to 4) would in no manner frustrate rights of petitioner for restoration of possession of Mukandgarh property having been vested in its favour by virtue of SARFAESI Act (supra) and accordingly it is held that the petitioner was unlawfully dispossessed through warrant of possession impugned herein. Consequently, writ petition succeeds and is hereby allowed. Warrant of possession dt.05/03/2010 impugned pursuant to which petitioner was dispossessed on 09/03/2010 is hereby quashed & set aside and the Executing Court is directed to restore possession of Mukandgarh property in favour of petitioner. However, it is made clear that if any breach of conditions of the lease deed dt.13/10/1992 is committed after being put to possession, the parties to the lease will be at liberty to avail of remedy provided under the lease deed in accordance with law. No costs.