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2014 DIGILAW 471 (MAD)

MRD Elangovan v. Recovery Officer

2014-02-25

K.KALYANASUNDARAM, M.JAICHANDREN

body2014
JUDGMENT K. Kalyanasundaram, J. 1. This writ petition has been filed praying that this Court may be pleased to issue a Writ of Certiorarified Mandamus, to quash the warrant issued by the first respondent, dated 25.11.2013 and for a direction to the first respondent not to disturb the peaceful possession of the petitioner. 2. The petitioner has contended that he is a lawful tenant at Door No.3/27, 'W'-Block, 1st Street, Anna Nagar, Chennai-40 and has been residing in the premises for the last three years, along with his family. It is further stated that the fourth respondent Bank had initiated proceedings against the 5th respondent, before the Debts Recovery Tribunal-I, Chennai, in O.A.No.137 of 2003, under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDB & FI Act), to recover the loan dues and on the basis of the order, dated 4.4.2008, the property of the 5th respondent was sold and the sale was also confirmed, in favour of the third respondent, through the order of the first respondent, dated 31.8.2009. The petitioner further stated that the first respondent had issued a warrant, dated 25.11.2013, to take possession of the property, which is challenged in the present writ petition. 3. Heard Mr. AR.L.Sundaresan, the learned Senior counsel for Mr. A.S.Balaji, the learned counsel appearing on behalf of the petitioner, Mr. S.V.Jayaramnan, the learned counsel appearing on behalf of the third respondent, Mr. M.L.Ganesh, the learned counsel appearing on behalf of the fourth respondent and Mr. N.Vijay Narayan, the learned Senior counsel appearing on behalf of the fifth respondent and perused the records. 4. The learned Senior counsel appearing for the petitioner contended that the petitioner is a statutory tenant and he cannot be evicted, without following the due process of law. It is further contended that as per Section 29 of the RDDB & FI Act, the provisions of the Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962, as far as possible are applicable and so, as per Rule 41 of the Income Tax (Certificate) Proceedings) Rules, 1962, the petitioner is entitled for hearing, before he is evicted from the premises. 5. 5. The learned Senior counsel appearing on behalf of the third respondent, who is an auction purchaser, has submitted that the 5th respondent had made unsuccessful attempt to scuttle the right of the fourth respondent Bank as well as the third respondent/the auction purchaser, in a proceedings before this Court, in C.S.No.796 of 2009 and in a suit, in O.S.No.4244 of 2011, but in vain and eventually set up the petitioner to lay frivolous litigations. 6. The learned Senior counsel further submitted that the third respondent had purchased the property, on 27.10.2009 and paid the entire sale consideration of Rs.2,02,50,000/-, but he is not able to take possession of the property due to the pendency of the Court proceedings and the unlawful attempts made by the fifth respondent and the petitioner herein. The learned Senior counsel further submitted that the petitioner has lost his case in a suit filed by him, in O.S.No.4244 of 2011, A.S.No.86 of 2012 and in C.M.A.No.2168 of 2013 and so, he is not having any legal right to enjoy the property in question. 7. The learned counsel appearing on behalf of the fourth respondent Bank had contended that the 5th respondent, along with her husband, had availed loan from the fourth respondent Bank, on 23.4.1998 and they have deposited the original title deeds, in respect of the property in question and due to the default made by the borrowers, the bank had filed an application before the Debts Recovery Tribunal-I, Chennai, in O.A.No.137 of 2003, to recover the dues. The Original Application was allowed, on 4.4.2008. 8. The learned counsel further contended that even as per the case of the petitioner, he became tenant of the property only on 27.2.2010. As per the judgment of the Honourable Apex Court in Sunitha Jugalkishore Gilda vs. Ramanlal Udhoji Tanna (Dead) through L.Rs and others, reported in 2013(5) CTC 99, the tenants, inducted during the subsistence of mortgage and during pendency of the proceedings before a competent Court and without the knowledge and consent of the original mortgagee, are not entitled for protection under the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned counsel submitted that the property was mortgaged in the year 1998 and the original application O.A.No.137 of 2003 was allowed, on 4.4.2008, and therefore, the petitioner is not entitled to protection under the Rent Control Act, and his claim as a statutory tenant, cannot be countenanced. 9. In Sunitha Jugalkishore Gilda vs. Ramanlal Udhoji Tanna (Dead) through L.Rs and others, reported in 2013(5) CTC 99, the Honourable Supreme Court has held as follows: "14. Section 65-A of the TPA deals with the Mortgagee's powers to lease. However, in view of Section 52, if the Mortgagor grants such a lease during the pendency of a Suit for sale by the mortgagee, the lessee is bound by the result of litigation and if the property is sold in execution of the decree, the lessee cannot resist a claim for possession by auction purchaser. 15. Section 52 deals with cases of transfer of anything otherwise dealing with any immovable property after any Suit or proceeding in which any right to such immovable property is directly and specifically in question has been filed. Section 65-A of the TPA deals with the powers of the Mortgagor to grant a lease of mortgaged property, while the mortgagor remains in lawful possession of the same. In Dev Raj Dogra and others vs. Gyan Chand Jain and Others, 1981(2) SCC 675 , following the judgment in Manru Mahto and others (supra), this Court held that if the Mortgagor grants a lease during the pendency of a Suit for sale by the Mortgagee, the lessee is bound by the result of the litigation. 16. Above legal proposition, in our view, will squarely apply to the facts of this case. On facts, we have already found that the induction of the First Respondent was during the subsistence of the Mortgage and also subsistence of the various Legal proceedings pending before various Courts. A plea was raised by the Counsel for the Respondent that he is entitled to get the protection of the Maharashtra Rent Act. In our view, this plea has no basis in the facts of this case. A tenant who is inducted during the subsistence of the Mortgage is not entitled to get the protection of the Maharashtra Rent Act. The legal position has been settled by this Court in Om Prakash Garg vs. Ganga Sahai and others, AIR 1988 SC 108 . In our view, this plea has no basis in the facts of this case. A tenant who is inducted during the subsistence of the Mortgage is not entitled to get the protection of the Maharashtra Rent Act. The legal position has been settled by this Court in Om Prakash Garg vs. Ganga Sahai and others, AIR 1988 SC 108 . In this connection reference may also be made to the judgment of this Court in Carona Shoe Co.Ltd.and another vs. K.C.Bhaskaran Nair, AIR 1989 SC 1110 ." 10. In the light of the principle laid down by the Honourable Apex Court, we are of the view that the petitioner is not entitled to claim protection, as a statutory tenant. Accordingly, the writ petition stands dismissed as devoid of merits. No costs.