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2015 DIGILAW 793 (CAL)

Ratan Chandra Das v. Mansur Rahaman Molla

2015-09-21

HARISH TANDON

body2015
Judgment : HARISH TANDON, J. The opposite parties are not represented despite service of notice upon them. The petitioner has challenged the judgment and order dated 06.06.2014 passed by the learned Additional District Judge, 6th Court, Alipore in Misc. Appeal No. 12 of 2011 passed by the learned Civil Judge (Senior Division), 3rd Court, Alipore in Title Suit No. 75 of 2011 by which the prayer to pass an ad interim order was refused. The petitioner filed the aforesaid title suit for declaration of his tenancy right in respect of two storied building situated on plot no. 174/888, 174/890 & 174/891 under Khatian Nos. 13/2, 13/3 & 429/1 in Mouza 3 Panchur, Police Station- Rabindranagar, District 24 Parganas South and permanent injunction restraining the defendants from creating any disturbances into peaceful possession of the plaintiff/petitioner in the suit property without due process of law. The petitioner claimed the tenancy rights since December 1, 1992 on the strength of an agreement dated 4th December, 1992 entered into between him and the opposite party no.1. It is alleged that on 6th January, 2011, a resident of the nearby locality informed the plaintiff/petitioner that an advertisement is published in Anandabazar Patrika on 14th December, 2010 for sale of the said property by United Bank of India for non-repayment of the loan taken by the opposite party no.1. In Paragraph 9 of the plaint, it is averred that the opposite party no.2 on visit to him informed that the Bank is entitled to take possession of the property under the provision of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is alleged that being a bonafide tenant of the secured assets, he cannot be throw out and/or dispossessed without taking recourse under the Rent Restriction Act and prayed for the above reliefs. In the backdrop of the aforesaid facts, an application for temporary injunction was taken out before the Trial Court and was moved for an ad interim order. The fact would reveal that the Trial Court declined to pass an ad interim order in favour of the plaintiff/petitioner and issued the show cause notice upon the defendant/opposite parties. In the backdrop of the aforesaid facts, an application for temporary injunction was taken out before the Trial Court and was moved for an ad interim order. The fact would reveal that the Trial Court declined to pass an ad interim order in favour of the plaintiff/petitioner and issued the show cause notice upon the defendant/opposite parties. The petitioner challenged the said order under Order 43 Rule 1 (r) of the Code of Civil Procedure before the Additional District Judge, 6th Court, Alipore and by the impugned order, the Appellate Court affirmed the order of the Trial Court. The Appellate Court declined to interfere with the impugned order solely on the grounds that Section 34 of the SARFAESI Act stands in the way. Though the Appellate Court noticed various judgments rendered by the Supreme Court and this Court including Mardia Chemicals Ltd; vs. Union of India reported in AIR 2004 SC 237 but this Court feels that the refusal to pass an ad interim order is supported by a recent judgment rendered by this Court in case of Harshad Govardhan Sondagar –v-International Assets Reconstruction Company Limited & Others; reported in (2014) 6 SCC 1. It would be relevant to quote Paragraph 35 of the said report which runs thus: “35. A further question of law raised in these appeals is whether the tenants have remedies under the tenancy law concerned. In the State of Maharashtra, the Maharashtra Rent Control Act, 1999 is in force and this Act applies to premises let for the purposes of residence, education, business, trade or storage specified in Schedule I and Schedule II to the Act as well as houses let out in areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applied before the commencement of the Act. Section 33 of the Maharashtra Rent Control Act is titled “jurisdiction of courts” and it provides that the courts named therein “shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under the Act and the applications which are to be decided by the State Government or an officer authorised by it or the competent authority”. The question of law that we have to consider is whether the appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the appellants. The answer to this question is in Section 34 of the SARFAESI Act, which is extracted hereinbelow: “34. Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).” A reading of the second limb of Section 34 of the SARFAESI Act would show that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Thus, when action is sought to be taken by the secured creditor under Section 13 of the SARFAESI Act or by the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act, the court or the authority mentioned in Section 33 of the Maharashtra Rent Control Act cannot grant the injunction to prevent such action by the secured creditor or by the Chief Metropolitan Magistrate or the District Magistrate. Even otherwise, Section 33 of the Maharashtra Rent Control Act vests jurisdiction in the courts named therein to decide disputes between the landlord and the tenant and not disputes between the secured creditor and the tenant under landlord who is a borrower of the secured assets.” In view of the ratio laid down in the above report and the provision of Section 34 of the SARFAESI Act, both the Courts below have not committed any error in refusing to pass an injunction preventing the secured creditor to take recourse to the provision of the SARFAESI Act. This Court, therefore, finds that the order impugned does not warrant any interference. This Court, therefore, finds that the order impugned does not warrant any interference. The revisional application is dismissed. However, there shall be no order as to costs.