Decided on November 28,2007



M.C.Jain, - (1.) THE State Bank of India is in appeal against the order dated 7.7.2006 passed by the Tribunal below in S.A. No. 106/2006. THE operative portion of the impugned order reads as under: Application is allowed and respondent Bank is directed to hand over the physical possession of the property which was under occupation of the applicant (third party/tenant) within a period of 15 days along with machinery, etc. (if taken in possession). However it is clarified that applicant (third party) shall deposit the rent of Rs. 4,600/- per month in the account of respondent Bank and this amount shall be dealt with as per directions of the Tribunal. It is further clarified that respondent Bank shall have a right to evict the applicant (third party) in accordance with law. It is further clarified that respondent Bank shall be at liberty to recover its outstanding against the borrower/mortgagor by any of any mode prescribed under Section 13 of SRFAESI Act, 2002. Parties to bear their own cost.
(2.) The facts may be stated briefly. The appellant-Bank sanctioned loan/credit facilities to M/s. Maya Cycle India-a partnership concern. To secure the credit facilities, one of the partners, namely, Mr. Panna Lal mortgaged his property in question (measuring 300 sq. yds., out of KhasraNos. 567 and 568, Khata No. 791/1214.585/127, Gali No. 1, in the Abadi known as New Janta Nagar, Ludhiana) with the Bank. The borrower committed default and the Bank served notice dated 20.12.2004 on the borrower under Section 13(2) of the SRFAESI Act. The present respondent is not the borrower, but claims himself to be a tenant in the property aforesaid. He filed S.A. under Section 17 of the Act-aforesaid before the DRT contending that vide Rent Note/Agreement dated 17.1.2004 Mr. Vinod Kumar, son of Mr. Panna Lal, had rented out a portion of the property in question to him on monthly rent of Rs. 4,000/-. He claimed that he was regularly paying the rent as well as electricity charges as per meter reading in the Sub-meter installed therein. He also alleged that he had telephone connection in his name in the said premises. On 17.11.2005, the appellant Bank took possession of the mortgaged property under Section 13(4) of the Act aforesaid. However, certain machines/items which were lying in the said premises and which were not charged with the Bank were delivered by the appellant to the respondent herein who was acting on behalf of M/s. Maya Cycles India (borrower). The Tribunal below has observed in para 11 of the impugned order that the Counsel for the respondent-Bank (appellant herein) frankly admitted the fact that the applicant (respondent herein third party) was tenant in the property in question and one-third share of the property was in his occupation. The DRT further observed that the only contention from the side of the Bank was that the applicant was inducted as tenant in the said property after creation of mortgage and, therefore, tenancy was void ab initio and he could not be allowed to take any benefit out of it.
(3.) I have heard Mr. S.L. Gupta, learned Counsel for the appellant and Mr. Pankul Nagpal, learned Counsel for the respondent. Mr. Gupta argued that the Bank does not admit the alleged tenancy claimed by the respondent herein. According to him, during the course of arguments before the Tribunal below, a question arose whether at the time of taking over the possession of the mortgaged property, the present respondent was present there. The Bank's Counsel replied the same in the affirmative because certain machineries/items, the inventory of which was prepared at that time and which were not charged with the Bank, were released to the borrower firm through the present respondent. Mr. Gupta submitted that the Tribunal below wrongly interpreted the same as if the appellant had admitted that the respondent was a tenant in the said premises. He contended that at no point of time the Bank had admitted the alleged tenancy of the present respondent in the said premises and/or that he had any right or interest in the mortgaged property. It has vehemently been argued for the appellant-Bank that complications are likely to arise if the possession of the property is ordered to be handed over to the respondent on the premise that the latter was a tenant therein, whereas, it could not be the case keeping in view the legal position. On the other hand, learned Counsel for the respondent argued that the respondent is a tenant in the premises in question and, therefore, cannot be di spossessed therefrom without due process of law. The Counsel submitted that the respondent has not been acting on behalf of the borrower M/s. Maya Cycles India. According to him, the Rent Note/Agreement executed between him and Mr. Vinod Kumar (son of Mr. Panna Lal) on 17.1.2004 clearly proves his character as being tenant in the premises in question. He further submitted that Mr. Vinod Kumar's father Mr. Panna Lal had executed a registered Gift Deed in his (Vinod Kumar's) favour in respect of the property in question on 21.3.2003. He also tried to support the claim of the respondent about the tenancy on the basis of rent receipts claimed to have been issued by Mr. Vinod Kumar and contended that the respondent cannot be evicted in exercise of alleged right of the Bank under Section 13(4) of the SRFAESI Act.;

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