MINAL BIBI AND ORS vs STATE OF WEST BENGAL AND ORS.

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
nd
directing the respondent bank to comply with the orders dated 22 July,
nd th th th th
2025, 22 July, 2025, 24 July, 2025, 24 July, 2025, 28 July, 2025, 28
th th
July, 2025, 28 July, 2025 and 28 July, 2025 passed in connection with Title
th
Suit No. 1466 of 2025, passed by the Learned VI 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.)