WP(C) 3579/2009 BEFORE HON’BLE MR JUSTICE HN SARMA Heard Mr. OP Bhatti, learned counsel for the petitioner and Mr. A. Pavez, learne d counsel appearing for the respondent Bank. Also heard Mr. Roy, learned Addl. Govt. counsel appearing for the o respondents No. 3 and 4. The subject matter of challenge in this writ petition is the proposed ac tion of the respondent bank to get possession of the property in question under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ’SARFAESI Act’) as per not ice of the bank through its counsel dated 14.5.09. The pleaded case of the petitioners interalia is that they are the tenan ts in respect of the ground floor of a building situated at Maligaon owned by M/ s Calico Woolen Industries, respondent No.5 herein. Due to non payment of cert ain dues payable to the Respondent Bank action under Section 13(2) of the SARFA ESI Act has been initiated by the respondent bank. After taking recourse to acti on under Section 13(2) of the Act further action under Section 13 (4) was taken by the bank for taking possession of the premises. Against the said notice under Section 13( 4), the Respondent No.5 owner of the building though filed appeal b efore the D.R.T. Guwahati being Appeal No.1/09 but the same was rejected in Ap ril, 2009. When necessary preparation for taking actual physical possession of t he building in question was made by the bank, the present petitioners, who are s tated to be the tenant in the ground floor of the building, has raised objectio n to the effect that they are the tenant under the respondent No.5 and are payi ng rent to the landlord and as such their possession cannot be disturbed and th ey cannot be evicted by passing any order under SARFAESI Act. Apprehending, su ch action, the petitioners on earlier occasion also approached before this court by filing WP ( C) No. 6149/06 and this court vide order dated 13.12.06 dispose d of the said writ petition. The said order is quoted below : Being apprehensive, that pursuant to the notice dated 24.11.2006 , served on it by the Respondent Bank, the latter would resort to coercive measu res to forcibly oust it from the premises presently in its occupation, the peti tioner is before this court for redress. I have heard Mr. B.R. De, Sr. Advocate, assisted by Mr. T. Roy, Advocate for the petitioner and Mr. Talukdar, Advocate assisted by Mr. A.Z. Chou dhury, Advocate for the Respondent Bank. The back ground in short impelling the petitioner to invoke the writ jurisdiction of this court deserve to be noticed. The petitioner claims to be a tenant in respect of the premises in question under M/S Calico Woolen Indus tries, Respondent No.5. The petitioner has maintained that the tenancy is covere d by the provisions of the Assam Urban Areas Rent Control Act, 1972. Following an action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( hereinafter referred to as the Act), the Respondent Bank in terms of the notice under Secti on 13 (2) thereof has taken over possession of the said premises as the secured assets of Respondent No.5. Subsequently thereto, by the impugned notice the peti tioner has been intimated that the premises is in the process of the being dispo sed of by way of sale/public auction for realization of the Bank’s dues. The Res pondent Bank has thereby instructed the petitioner to make alternative arrangeme nt for its accommodation. By the said notice the petitioner has also been direct ed to pay the outstanding rent to the Bank during the period of its occupation d isclosing that on any failure in that regard the Bank would be at liberty to tak e effective legal action by evicting it (petitioner) therefrom. It has been stat ed on oath that the Chief Manager (authorized officer) of the Bank, Respondent N o.4 has also threatened forcible eviction of the petitioner. Mr. De, while reiterating the pleaded acts have emphatically urg ed that the petitioner’s status of a tenant has not been altered by the action u nder the Act and therefore, the threat of its forcible ouster from the premises, is exfacie, illegal and arbitrary. Mr. Talukdar has submitted that having regard to the contents of the impugned notice dated 24.11.06 the apprehension of forcible eviction from t he premises is wholly unfounded It is submitted on instructions that the Respond ent Bank do not intend to evict the petitioner by using force. However, it would be open for the Bank to take recourse to appropriate legal remedies he urged. On a consideration of the pleaded statements, the impugned notic e and the assurance that Respondent Bank would not apply force for getting the p remises vacated of the petitioner pursuant to the exercise initiated under the A ct, no further order is called for. The respondent Bank would not resort to coer cive measures not sanctioned by law to obtain possession of the premises. Needless to say it would be open to the Respondent Bank if so ad vised to take appropriate legal measures for necessary reliefs available to it i n law. This petition is disposed of in the above terms. No cost. The notice issued by the Bank upon the petitioners to deliver the posse ssion of the premises having failed to evoke any response from the petitioner, the Bank approached the District Magistrate, Kamrup under Section 15 of the SAR FAESI Act, as submitted by Mr. Parvez. It is further submitted that on an appli cation under Section 14 of the Act, the learned District Magistrate has issued n ecessary direction for taking possession of the building in question and when su ch move was taken, the petitioners have again filed this writ petition before th is court by filing this writ petition. Learned counsel submits that the petition ers are frustrating the implementation of the provision of the SARFAESI Act. Mr. Bhati, learned counsel strenuously submitted that there is an exist ing relationship between the petitioner and the respondent No.5 as tenant and la ndlord and they are complying with the terms and conditions of the tenancy and they are not affected under the aforesaid Act so long they fulfill the terms of tenancy agreement. Mr Parvez, on the other hand, referring to the rent agreemen t submits that the tenant/petitioner is an HUF and is represented by Mr. Vino d Kumar Goenka and the owner of the building is his son and thus there is a nexu s between the landlord and the tenant who join together is resisting taking ove r possession under the Act. It is further stated that although the property in question is the subjected to mortgage by way of security against loan of the Ba nk and in terms of Section 69 of the Act, no lease can be granted exceeding th ree years under the Transfer of Property Ac in respect of such property. . Mr. Bhati submits that the petitioners being the tenant the respondent Bank cannot not take any action under SARFAESI Act against the petitioners. It is found that in the instant case necessary action which is required to be taken has already been taken under SURFAESI Act and the District Magistrate has already taken necessary steps in this respect for taking possession of the prope rty by the Bank U/S Section 14 of the Act which provides such procedure. From the pleaded facts and documents made available before me it is clea r that the petitioners, being faced with such situation in the year 2006, appro ached this court by filing WP ( C) No. 6149/06 and in terms of the order passed on 13.12.06, quoted hereinabove, necessary action as proposed as per law appea rs to have taken by the respondent Bank under Section 14 of the SARFAESI Act a nd the petitioner is not entitled to stand on the way to frustrate the implemen tation of the provision of the Act in taking proposed action by the Bank, on the ground that they are tenant under Respondent No.5. The bonafide of the petitio ner is very much doubtful in view of their relationship with the Respondent No.5 , the owner and the defaulter landlord. Considering the facts and circumstances in its entirety, I do not find a ny merit in this writ petition and the same stands dismissed.