IN THE HIGH COURT AT CALCUTTA (CONSTITUTIONAL WRIT JURISDICTION) APPELLATE SIDE Present : The Hon’ble Justice Partha Sarathi Chatterjee WPA 27228 of 2026 Minal Bibi & Ors. Vs. The State of West Bengal & Ors. For the petitioners : Mr. Kushal Chatterjee, Mr. Oishik Chatterjee, Mr. Md. Babar Ansari. For respondent Bank : Mr. Shiv Mangal Singh, Mrs. Madhu Shaw. For the State : Mr. Falguni Bandyopadhyay, Mr. Rajdeep Bhattacharya. Heard on : 25.09.2026 Judgment on : 25.09.2026 Partha Sarathi Chatterjee, J.:- 1. Affidavit-of-service as filed on behalf of the petitioners is taken on record. 2. The present writ petition has been preferred, essentially seeking, amongst other reliefs, the following relief:— 2 “(a) A writ of and/or writs in the nature of Mandamus be issued thereby directing the respondent bank to comply with the orders dated 22nd July, 2025, 22nd July, 2025, 24th July, 2025, 24th July, 2025, 28th July, 2025, 28th July, 2025, 28th July, 2025 and 28th July, 2025 passed in connection with Title Suit No. 1466 of 2025, passed by the Learned VIth City Civil Court at Calcutta, Title Suit No. 154 of 2025, Title Suit No. 159 of 2025, Title Suit No. 158 of 2025, Title Suit No. 161 of 2025, Title Suit No. 162 of 2025, Title Suit No. 164 of 2025 and Title Suit No. 163 of 2025, passed by the Learned Civil Judge (Senior Division), Sealdah respectively;” 3. Mr. Chatterjee, learned Advocate appearing for the petitioners, submits that the predecessors-in-interest of the petitioners were inducted as tenants in respect of the property forming the subject matter of the present writ petition as far back as in the year 1980. Subsequently, the petitioners’ landlord transferred the said property in favour of one Heena Ali, who, by creating an equitable mortgage over the property, availed of a loan facility from the State Bank of India. It is submitted that, upon Heena Ali committing default in repayment of the loan, the Bank initiated proceedings under the provisions of the SARFAESI Act for enforcement of its security interest. 4. He submits that immediately upon coming to learn of the aforesaid developments, the petitioners approached the Bank and duly apprised it of their status and interest in respect of the secured assets. It is contended that, notwithstanding such intimation, the Bank proceeded to take steps for taking possession of the property in question, without giving due regard to the petitioners’ claim. Aggrieved thereby, the petitioners were constrained to institute as many as eight suits, in each of which, on different dates, interim orders were passed directing the parties thereto to maintain status quo with regard to possession of the respective suit properties. It is further submitted that the Bank was impleaded as a defendant in the said suits. 3 5. He submits that, notwithstanding the subsistence of such interim orders, the Bank, in patent disregard thereof, is now going to take forcible possession of the property in question. Faced with such a situation, the petitioners have been constrained to invoke the extraordinary writ jurisdiction of this Court by filing the present writ petition. It is submitted that, in the aforesaid conspectus of facts and circumstances, an immediate intervention by this Court is warranted and that, unless the respondent-Bank is restrained, by way of an appropriate interim order, from taking any steps to take possession of the said property in derogation of the interim orders passed by the competent civil courts in the aforesaid suits, the petitioners are likely to suffer serious and irreparable prejudice. 6. He places reliance upon the decision of the Hon’ble Supreme Court reported in (2019) 9 SCC 94 (Bajarang Shyamsunder Agarwal v. Central Bank of India & Anr.), and submits that, having regard to the interplay between the provisions of the SARFAESI Act, the Transfer of Property Act and the applicable rent laws, the Hon’ble Supreme Court has held that where a valid tenancy, recognised in law, was in existence prior to the creation of the mortgage, the possession of such tenant cannot be disturbed by the secured creditor by resorting to proceedings under the SARFAESI Act. According to him, in such a situation, the secured creditor must be taken to have accepted the attendant risks arising from the subsisting tenancy, and the lawful rights of a tenant cannot be defeated or compromised in proceedings undertaken under the SARFAESI Act. He submits that, in that event, before proceeding to take possession of the secured asset, the validity and subsistence of the tenancy are required to be duly determined. 7. In rebuttal, Mr. Singh, learned Advocate appearing for the Bank, submits that the present writ petition is not maintainable, the petitioners having approached this Court without first availing themselves of the efficacious statutory alternative remedy available to them. He places reliance upon the decision of the Hon’ble Supreme Court reported in (2024) 6 SCC 579 (PHR Invent Educational Society v. UCO Bank & Ors.), and submits that a Constitution Bench 4 of the Hon’ble Apex Court, upon an exhaustive consideration of the decisions governing the field, has reiterated that the High Court ordinarily ought not to entertain a petition under Article 226 of the Constitution of India, particularly where an efficacious statutory alternative remedy is available to the aggrieved party. 8. He submits that, in the present case, the measures were undertaken by invoking the provisions of Section 14 of the SARFAESI Act as far back as in the year 2017. Referring further to the decision in Bajarang Shyamsunder Agarwal (supra), he submits that a tenant claiming under the borrower, if aggrieved by any measure taken by the secured creditor under Section 13(4) or Section 14 of the SARFAESI Act, is entitled to approach the learned Debts Recovery Tribunal for appropriate relief. According to him, the petitioners, therefore, had an efficacious statutory remedy available to them before the learned Debts Recovery Tribunal, which they consciously chose not to avail. Instead, they have remained silent for nearly nine years and have chosen to approach this Court only at this belated stage. 9. Referring to a decision, reported in AIR 2025 SC 2215 (R. Nagraj (Dead) thr. LRs & Anr. vs. Rajmani & Ors.), he argues that it is a well-settled proposition of law that where an action is initiated several years after the right to sue had accrued, and there is no pleading explaining the delay, it becomes incumbent upon the Court to examine whether such a stale claim ought to be entertained. 10. Referring to the provisions of Section 34 of the SARFAESI Act, he submits that the legislative mandate embodied therein creates a specific bar upon the jurisdiction of the civil Court to entertain any suit or proceeding in respect of any matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine. He further submits that Section 34 also expressly provides that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken under the SARFAESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. According to him, the present writ petition has been preferred seeking to enforce and/or give effect to an order passed by a civil 5 court. He submits that, in view of the express bar contained in Section 34 of the SARFAESI Act, the civil court lacked jurisdiction to adjudicate upon the subject matter and, consequently, the decree and/or order passed in the said suit is a nullity in the eye of law. In support of such contention, he places reliance upon the decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr.). Therefore, he contends that, in view of the aforesaid legal position, the reliefs as prayed for in the present writ petition cannot be granted. 11. He refers to the schedule to the deed annexed to the writ petition, appearing at page 26 thereof, and contends that the deed executed in favour of the borrower would indicate that, prior to the creation of the equitable mortgage over the property in question, there were only three tenants, namely, Alok Das, Kajol Adhikary and Majid Abdul Mallick, all of whom have since expired. He submits that, even if the present petitioners claim to be the legal heirs of the said three persons, they cannot, in that event, assert any tenancy right in respect of the property in question beyond the period of five years from the death of their respective predecessors-in-interest, having regard to the provisions of Section 2(g) of the West Bengal Premises Tenancy Act, 1997. He further places on record a document styled as a sale intimation letter and submits that the Bank has already sold the property in question through the e- auction process. The document so produced on behalf of the respondent-Bank is taken on record. 12. Mr. Bandyopadhyay, learned Advocate appearing for the State, enters appearance and submits a report. He submits that, in the present writ petition, specific allegations have been levelled against the respondent no. 2 alleging his inaction in taking appropriate steps against the respondent-Bank. He submits that, in respect of the property in question, certain civil proceedings are pending before the competent courts of law, wherein interim orders have also been passed and, in view thereof, the respondent no. 2 could not take any steps in respect of the said property. He further submits that the respondent no. 2 is ready and willing to abide by and comply with any order that may be passed by this Hon’ble Court. 6 13. Heard learned Advocates appearing for the respective parties and perused the materials on record. 14. Undisputedly, as noticed hereinbefore, the present writ petition has been instituted essentially seeking implementation of the interim orders passed in certain civil suits. At the outset, it may be observed that the Code of Civil Procedure, 1908 constitutes a complete code in itself and provides an efficacious remedy to a person in whose favour an interim order has been passed, in the event of any violation thereof or for securing implementation of such order. At the same time, it is equally true that, having regard to the provisions of Section 34 of the SARFAESI Act, the jurisdiction of the civil court is barred in respect of any matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine. Section 34 further expressly prohibits a civil court from granting any injunction in respect of any action taken or to be taken under the SARFAESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Undoubtedly, an order or decree passed by a court lacking jurisdiction over the subject matter of the suit is a nullity and, in Harshad Chiman Lal Modi (supra), it was held that where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot entertain or adjudicate upon the cause or matter and any order passed by a court lacking such jurisdiction is a nullity. Therefore, this issue, as urged on behalf of the respondent-Bank cannot be lightly brushed aside. 15. Fundamentally, the present writ petition has been instituted with a view to stalling the recovery proceedings initiated by the secured creditor in respect of the secured asset. It is a settled proposition of law that a tenant under a borrower would come within the ambit of the expression ‘any person’ employed in Section 17 of the SARFAESI Act and, consequently, the petitioners had an efficacious alternative remedy before the learned Debts Recovery Tribunal. In the decision in PHR Invent Educational Society (supra), the Constitution Bench of the 7 Hon’ble Supreme Court deprecated the practice of entertaining a writ petition seeking to interdict or stall such recovery proceedings. 16. On the facts of the present case, the equitable mortgage over the property in question was created by its owner in the year 2011 for availing of a loan facility. The schedule to one of the deeds indicates that, at the relevant point of time, there were three tenants in respect of the said property. Therefore, having regard to the decision in Bajarang Shyamsunder Agarwal (supra), it may be observed that the Bank had accepted the attendant risk arising from the subsistence of the tenancy of the said three persons in respect of the secured asset, subject, however, to the production of cogent and legally admissible evidence establishing the existence and validity of such tenancy in accordance with law. The documents produced by the petitioners in support of their alleged tenancy right in respect of the property of one Surja Khanam comprise an unregistered instrument. In Bajarang Shyamsunder Agarwal (supra), it has been observed that, where a tenant claims a right to remain in possession of the secured asset for a period exceeding one year, such claim is required to be supported by a registered instrument. No such registered instrument has been placed on record by the petitioners. Furthermore, admittedly, the persons whose names were referred to in the schedule to the deed are not before this Court as petitioners. Whether, after the lapse of almost fourteen years, the petitioners can still assert any right over the tenanted property, having regard to the provisions of Section 2(g) of the West Bengal Premises Tenancy Act, 1997, is a matter which would require consideration in an appropriately instituted proceeding. 17. Therefore, having regard to the facts and circumstances of the case and applying the propositions laid down in the decisions referred to in the preceding few paragraphs, I do not find any reason to interfere in the present writ petition. 18. With these observations and order, the present writ petition is, thus, dismissed. However, there shall be no order as to costs. 8 19. However, it is clarified that this order shall not preclude the petitioners from approaching the appropriate forum in accordance with law. 20. Since no affidavits have been called for from the respondents, the allegations made in the writ petition shall be deemed not to have been admitted by the respondents. 21. Let urgent Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking. (Partha Sarathi Chatterjee, J.)