Madras High Court
Ashakina Begum vs T.M.Varatharajan on 24 January, 2013
Bench: Chitra Venkataraman, R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :24.01.2013 Coram The Honourable Mrs.Justice CHITRA VENKATARAMAN and The Honourable Mr.Justice R.KARUPPIAH W.P.No.4913 of 2012 and M.P.No.1 of 2012 --- Ashakina Begum .. Petitioner -vs- 1.T.M.Varatharajan 2.V.Mahalakshmi 3.Indian Bank Gandhi Road Branch Rep. By its Chief Manager Authorised Officer Mr.L.Raman Kancheepuram-631 501 4.The Branch Officer Syndicate Bank Purasawalkam Branch Chennai 5.The Branch Manager Dena Bank George Town Branch Chennai .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus forbearing respondents 3 to 5 and his men, agents, servants and any person claiming through or under them from interfering with the petitioner's lawful possession and enjoyment of the property situated at Sruthilaya Apartments, Flat No.F-1, First Floor, Old Door No.32 and 32-A (New No.37), Bharatheeswarar Colony, 4th Street, Kodambakkam, Chennai-24 except under due process of law. For petitioners : Mr.P.Subramanian For respondents : Mr.K.Vaidhyanathan for R4 Mr.R.Mariappan for R5 O R D E R
(The Order of the Court was made by CHITRA VENKATARAMAN, J.) The Writ Petition is filed for writ of Mandamus forbearing respondents 3 to 5 from interfering with the petitioner's lawful possession and enjoyment of the property situated at Sruthilaya Apartments, Flat No.F-1, First Floor, Old Door No.32 and 32-A (New No.37), Bharatheeswarar Colony, 4th Street, Kodambakkam, Chennai-24.
2. The petitioner is a lessee under the first respondent/landlord. It is stated that the first respondent executed a lease deed dated 01.04.2008 in favour of the petitioner after receiving a sum of Rs.6,00,000/= as consideration for leasing out of the above flat for a period of 11 months. It is stated that the lease was subsequently renewed on 12.11.2011 for a further period of 11 months and the same was in force as on the date of the filing of the writ petition i.e., February 2012. The petitioner states that the Officials of the third respondent-Indian Bank called upon the petitioner to vacate the premises on account of Debt Recovery Proceedings against the first respondent for recovery of a sum of Rs.13,80,030/- with interest. Accordingly, the third respondent-Indian Bank issued possesion notice on 05.02.2012 under Section 13(4) of the Securitization Act, 2002 and they disturbed the physical possession of the property. According to the petitioner, the action taken by the Bank is illegal. In support of the claim, the lessee/petitioner submits that the third respondent-Indian Bank has no right to take action against the petitioner and learned counsel for the petitioner placed reliance upon this Court decision in the case of Indian Bank, Adyar Branch rep. By its Authorised Officer/Assistant General Manager Vs. Nippon Enterprises South, Rep. By its Partner, Mr.Chetan Acharya and others reported in 2011 (2) CTC 474 stating that in respect of lease hold property, the Bank cannot straight away dispossess the petitioner for taking recourse of the recovery proceedings against the landlord. In the light of the settled position of the law, learned counsel submits that the attempt of the Bank to dispossess the petitioner is not valid in law.
3. The fifth respondent-Dena Bank as well as third respondent-Indian Bank have filed counter affidavits. It is seen from the averments in the counter affidavit filed by the fifth respondent that the 1st and 2nd respondent availed loan facility from the said respondent. The Bank disbursed the loan of Rs.14 Lakhs on 09.03.2005 and the first respondent depostied the original title deeds conveying the specific undivided share of land in proportionate with the flat. It is stated that the equitable mortgage was created by deposit of title deeds. While equitable mortgage was created by the 1st and 2nd respondent, the builder of the Flat had entered into various agreements and had obtained housing loan from different banks for the same property. The fifth respondent-Dena Bank filed original application in O.A.No.19 of 2009 for recovery of a sum of Rs.18,18,156/- along with interest at the rate of 8% per annum. The Original Application was ordered. When the Bank went to take possession, the petitioner resisted it. The fifth respondent submits that there is no indication regarding valid lease. It is further pointed out that under Clause 10 of the said documents, it is clearly stated that it is the responsibility of the first respondent, if any dispute arising therein, to set right the same. In any event, considering the deposit of title deeds given as well as disbursement of loan dated 09.03.2005, the claim of the petitioner cannot be entertained.
4. The third respondent-Indian Bank, on its part has filed counter affidavit. It is pointed out that under the lease deed dated 01.04.2008, the consideration is stated to be Rs.6,00,000/-. The claim that the lease had been renewed for further 11 mnths is a total false claim. It is further stated that considering the mortgage created in favour of the Bank and the recovery proceedings, whatever be the petitioner's claim regarding lease deed rights, it is subsequent to the mortgage created in favour of the Bank, consequently, the claim of the petitioner cannot be sustained.
5. Learned counsel appearing for the petitioner placed before us the copy of the so called lease deed dated 01.04.2008. A perusal of the said lease deed, which is an un-registered one shows that the parties had agreed to give the property on lease to the petitioner on his giving a sum of Rs.6,00,000/- to the borrower/1st respondent. Clause 3 of the agreement shows that in respect of the lease taken, there was no rent fixed, however, the petitioner was to pay the Electricity charges and other maintenance charges. When the petitioner vacates the premises, the first respondent/landlord shall refund Rs.6,00,000/- without any deduction. In November 12, 2011, there was a renewal of the earlier document. Even herein, the period is stipulated as 11 months and there are no details as to what could be the rent on the lease. It is relevant to point out that the amount parted with by the petitioner to the tune of Rs.6,00,000/- does not earn any interest nor the document disclose what is the consideration for the lease given. In sum and substance, the document produced before this Court shows that on advancing of a amount of Rs.6,00,000/-, the petitioner has been permitted to occupy the house, which, on no account, to be treated as lease. It may be further noted that under Clause 10, it is stated that if any dispute regarding any recovery of amount is to crop up by either institution or Public Sector Undertaking or Government, it is the first respondent, who was to protect and set right the dispute. As far as the first respondent is concerned, inspite of service of notice, he remained exparte before this Court. In any event, the document dated 01.04.2008 is long after the creation of mortgage in favour of the Creditor/Banks. The document, thus creates a doubt as to the very genuineness on the plea of lease.
6. We do not find any justifiable ground in accepting the plea of the petitioner in placing reliance on the decision of this Court reported in 2011 (2) CTC 474 (Indian Bank, Adyar Branch rep. By its Authorised Officer/Assistant General Manager Vs. Nippon Enterprises South, Rep. By its Partner, Mr.Chetan Acharya and others), and his submission that the said decision would have direct bearing herein.
7. A reading of the judgment reported in 2011 (2) CTC 474 (cited supra) shows that the lease dated 01.08.2000 in the said case was much prior to the cretion of charge on 10.01.2008 in favour of the Bank. Further, the Bank itself had asked the tenant to pay the rent to the Bank. Hence, irrespect of the fact as to whether the lease was rejected or not, the tenant was a bonafide tenant in occupation of the property. With no dispute on the lease, this Court held that SARFAESI Act being a procedural enactment and Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 dealing with substantive right of the tenants, there is no repugnancy or overlapping between the two Acts and the physical possession of secured assets from tenant can be taken only by invoking provisions of Rent Control Act.
8. Considering the facts and circumstances of the case herein, which is totally different one, when the very claim of the petitioner that he is a lesseee is under cloud and is a matter to be substantiated before the competent authority, we do not find any ground to order the writ petition as sought for by the petitioner. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, connected MP is closed.
nvsri To
1.Chief Manager/Authorised Officer Mr.L.Raman, Indian Bank,Gandhi Road Branch Kancheepuram-631 501
2.The Branch Officer Syndicate Bank Purasawalkam Branch Chennai
3.The Branch Manager Dena Bank George Town Branch Chennai