Punjab-Haryana High Court
Rahul Sharma vs Ut Of Chandigarh & Ors on 27 November, 2014
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 27.11.2014
CWP No.17710 of 2014
Rahul Sharma ...Petitioner
Versus
Union Territory, Chandigarh & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. V.K.Sachdeva, Advocate, for the petitioner.
Mr. Amit Arora, Advocate, for respondent Nos.1 to 3.
Mr. R.S.Bhatia, Advocate, for respondent No.4.
HEMANT GUPTA, J. (ORAL)
Challenge in the present writ petition is to a communication dated 21.08.2014 (Annexure P-1) of the District Magistrate, Chandigarh whereby the Tehsildar (Revenue) was directed to take possession of Plot No.149, Industrial Area, Phase-II, Chandigarh, owned by Umesh Moudgil, mortgagor and to handover the possession to the Authorized Officer of Punjab National Bank with whom the said property was mortgaged.
The petitioner claims that he entered into possession of a part of Plot No.149, Industrial Area, Phase-II, Chandigarh i.e. one room on the first floor in pursuance of rent agreement dated 15.04.2013 on a monthly rent of Rs.5000/-. The petitioner further claimed that another part of first floor as well as the basement of the building in question was taken vide separate rent agreement dated 01.09.2013 on a monthly rent of Rs.11,000/-. VIMAL KUMAR The petitioner alleged to have paid monthly rent in cash. The said property 2014.12.02 16:43 I attest to the accuracy and integrity of this document Chandigarh CWP No.17710 of 2014 2 owned by Umesh Moudgil was mortgaged with respondent No.4 - Punjab National Bank in the year 1979.
As per the stand of respondent No.4 - Punjab National Bank, the account became irregular in the year 2011 and later in April, 2013 due to failure of the restructuring of the loan. It is the stand of respondent No.4
- Bank that sham tenancy has been created by fabricating the rent notes and that account was classified as non-performing asset on 05.10.2013. It is also pointed out that the petitioner is nephew of Umesh Moudgil and that the petitioner has not intentionally disclosed the residential address of Umesh Moudgil, who is residing in the same house as of the petitioner. It is, thus, contended that the petitioner has not approached the writ Court with clean hands.
It is also pointed out that M/s Modula Hetreats Private Limited of which Umesh Moudgil is a Director has filed an application under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') before the Debts Recovery Tribunal claiming title over the property in question, wherein it has not been averred that part of the building on the said plot is under tenancy of the present petitioner.
Before this Court, the argument on behalf of the petitioner is that the petitioner is a bona fide tenant in the part of the building in question since 15.04.2013 and in another part from 01.09.2013 and has also opened cash credit account with respondent No.4 - Bank in the year 2013. Learned counsel for the petitioner relies upon the registration with the Central Excise Department as well as the invoices regarding sale of goods VIMAL KUMAR 2014.12.02 16:43 from the premises in question to assert that the petitioner is a bona fide I attest to the accuracy and integrity of this document Chandigarh CWP No.17710 of 2014 3 tenant in the premises in question. It is also contended that the petitioner has hypothecated the goods and machinery with Allahabad Bank, which establishes the bona fide of the petitioner, as a tenant.
We have heard learned counsel for the parties at length and find that the petitioner has not approached this Court with clean hands. The petitioner has not disclosed that he is a relation of Umesh Moudgil, the owner and mortgagor of the plot. The petitioner relies upon the rent agreement dated 15.04.2013, but the rent is said to have been paid in cash. In pursuance of the subsequent rent agreement dated 01.09.2013 again the rent is said to have been paid in cash. The close relation, the mode of payment of rent and the timing at which the tenancy is said to have been established are clearly indicative of the collusiveness of the petitioner with the owner and mortgagor namely Umesh Moudgil.
Though the loan account of the borrower was declared non- performing asset on 05.10.2013, but antedating documents for some time for the reason that the amount of rent is said to be paid in cash and the rent note being unregistered document are strong indications of the antedating of the documents.
The documents produced by the petitioner may show that he is in occupation of the part of the premises, but the possession is not proved to be that of a tenant. The possession of a close relation such as petitioner would be as that of licensee. Still further, any encumbrance on the property after mortgage will not affect the rights of the mortgagee to sell the property in order to realise its dues. Since the possession of the petitioner is not that of a tenant, he cannot seek protection as a tenant to VIMAL KUMAR 2014.12.02 16:43 avoid the possession at the instance of a Bank from a defaulter. I attest to the accuracy and integrity of this document Chandigarh CWP No.17710 of 2014 4
Mr. Bhatia has pointed out that the petitioner has also filed a civil suit, but the particulars of such civil suit have not been intentionally disclosed. It is averred that particulars of the civil suit shall be disclosed, if required.
On the other hand, Mr. Sachdeva admits that a civil suit for permanent injunction was filed and that such fact finds mention in the writ petition as well. However, it was filed prior to taking the possession so as to protect the possession of the petitioner as tenant, as the petitioner was under duress at the instance of respondent No.5 to vacate the premises. But he is unable to produce the copy of the plaint of such suit. The fact that particulars of the civil suit and the nature of relief claimed therein have not been disclosed in the writ petition shows the contumacious conduct of the petitioner to approach civil court and also this court claiming similar relief.
Therefore, the action of the petitioner in approaching this Court on the basis of collusive and unreliable rent agreements and by concealing material facts disentitle the petitioner of any indulgence from this court of equity. We do not find any fact which may call for any interference by this Court in exercise of its writ jurisdiction.
In view of the above, the present writ petition is dismissed with a cost of Rs.50,000/- to be paid to the respondent - Bank within a period of two months.
(HEMANT GUPTA)
JUDGE
27.11.2014 (HARI PAL VERMA)
Vimal JUDGE
VIMAL KUMAR
2014.12.02 16:43
I attest to the accuracy and
integrity of this document
Chandigarh