JUDGMENT : Introduction: A borrower faces recovery. About to be dispossessed, she approaches the Court, pleads many things, but abandons all in the end, then seeks only one relief: a couple of weeks’ time to vacate. Court grants it. She violates. Then a stranger emerges from the litigious shadows. Claiming to be a tenant, he goes to the Tribunal and gets the eviction stayed. The creditor, all his efforts to get the secured assets stultified, files a contempt case, the alleged tenant added to the proceedings. Can the borrower suffer for the tenant’s assertion? Conversely, can the tenant suffer for the borrower’s breach? Facts: 2. Petitioner Jayalakshmi N. Pillai borrowed two loans: a housing loan and a mortgage loan, in 2012, by mortgaging her immovable property. With that loan she built a house, but she defaulted on the loan repayment. To recover the loans, the Bank issued a notice under Section 13 (2) of the SARFAESI Act. Then Jayalakshmi filed WP (C) No.4624 of 2017. 3. Through a judgment, dated 22.06.2017, this Court allowed Jayalakshmi to pay the loan arrears in ten equal monthly instalments, along with regular instalments. Jayalakshmi did not pay. 4. Left with no other option, the Bank proceeded further; it invoked Section 14 and had an advocate-commissioner appointed, for taking physical possession of the secured asset: the house. When the advocate commissioner issued the Ext.P4 notice, Jayalakshmi filed this writ petition. 5. On the day the Court took up the matter for hearing, Jayalakshmi’s counsel abandoned all pleas; instead, he sought fifteen days for Jayalakshmi to surrender the vacant secured asset. The Bank's counsel consented to this. He nevertheless, as a stroke of premonition, insisted that if Jayalakshmi violates her undertaking, it should be treated as an act of contempt. Then, on 25th June 2018, this Court disposed of the writ petition observing thus: “4. So, I hold that the petitioner must, as undertaken, surrender the possession within fifteen days, lest the violation of such an undertaking should be treated as negating the Court directive willfully.” 6. Later, the Bank filed Contempt Case No. 1589 of 2018. It complained that Jayalakshmi willfully violated her undertaking—rather the Court's direction. The Bank's counsel has also brought to the Court's notice one startling factor: a tenant's resistance. Later, the Bank filed Contempt Case No. 1589 of 2018. It complained that Jayalakshmi willfully violated her undertaking—rather the Court's direction. The Bank's counsel has also brought to the Court's notice one startling factor: a tenant's resistance. Startling I said, because Jayalakshmi has never pleaded about tenancy at any stage, either in the previous writ petition or in the latter one. Startling may be an exaggerated expression, but its use here justifies itself. P. Prasad, the tenant, emerged out of thin air; he filed an S.A. before the Debt Recovery Tribunal and secured a stay on 19.07.2018—nearly a month after Jayalakshmi’s undertaking to vacate the house. 7. In the Contempt case, Jayalakshmi, as the respondent, did not appear before the Court, despite receiving notice. The Court, then, issued a bailable warrant. Eventually, under pain of arrest, Jayalakshmi turned up. She engaged a new counsel for handling the contempt proceedings. 8. Sri T. A. Shain, the new counsel, has told the Court that Jayalakshmi has complied with the judgment and vacated the house. The Court advised Sri Shain to be cautious while committing himself on a factual assertion; it rather advised him to have the facts fully ascertained from Jayalakshmi. Then, he has sought time to file a counter affidavit. 9. Sri Shain, as undertook, did place on record Jayalakshmi’s counter affidavit. The affidavit explains that the secured asset comprises a couple of rooms. Jayalakshmi along with her children used to reside in one room, having let out the other to Prasad. As undertaken, she vacated that room, but Prasad wanted to assert his independent right. So he approached the Debt Recovery Tribunal (“the Tribunal”). Later, this Court suo motu brought Prasad, the alleged tenant, on record and put him on notice. Then he appeared through Sri N. K. Mohan Lal, and defended himself. 10. Heard Sri Paulochan Antony P., the learned counsel for the creditor-Bank, Sri T. A. Shain, the learned Counsel for Jayalakshmi, the borrower and landlady, and Sri N. K. Mohan Lal for P. Prasad, the tenant. Submissions: Bank’s: 11. Sri Paulochan Antony, the Bank's counsel has submitted that Jayalakshmi has conducted herself contumaciously; she has no semblance of defence, for she flagrantly violated her undertaking. According to him, she has deliberately mislead the Court, set up a tenant, and stultified a consent order—willfully and deliberately. 12. Submissions: Bank’s: 11. Sri Paulochan Antony, the Bank's counsel has submitted that Jayalakshmi has conducted herself contumaciously; she has no semblance of defence, for she flagrantly violated her undertaking. According to him, she has deliberately mislead the Court, set up a tenant, and stultified a consent order—willfully and deliberately. 12. Sri Antony stresses that the remedy under Article 226 is equitable and Jayalakshmi was least entitled to that remedy. But for her undertaking, this Court could have dismissed the writ petition. He also argues that with the time she secured under a false promise, she set up a tenant, let him file an SA before the DRT, and successfully defeated this Court’s directive. 13. Focusing on the lease deed the tenant produced before the Court, Sri Antony submits that it falls foul of Section 65A of the Transfer of Property Act. In the end, he has submitted that both Jayalakshmi and the tenant lack bona fides and that their conduct deserves condemnation. So he wants a positive mandamus from this Court: the alleged tenant should handover the secured asset to the Bank. And failing that, the Court may further direct the police to assist the Bank in taking possession of the property. The Putative Tenant’s: 14. Sri N.K. Mohanlal, the learned counsel for the putative tenant, has taken pains to meet every argument the Bank's counsel advanced. To begin with, he has submitted that Jayalakshmi’s consent does not bind the tenant, who has, according to him, an independent right. Only in exercise of that has he approached the Tribunal. He has also submitted that the Tribunal did grant an interim protection to him, after satisfying itself about the prima facie merit of his claim. 15. In this context, Sri Mohanlal submits that Section 17 (4A), a newly engrafted provision in the SARFAESI Act, confers exclusive power on the Tribunal to rule on the tenant's claim. Therefore, this Court should not interfere, he stresses. Referring to Section 65(A) of the TP Act, Sri Mohanlal admits that Jayalakshmi, as the landlady, took Rs.20,000/-from Prasad, her tenant, as advance. But that “advance is security for the lease purpose”. In other words, “it is security in case of damage”, he further explains, “to building or rent defaulted”. 16. Sri Mohan Lal stresses that “premium” has not been defined under the Act—any Act. But that “advance is security for the lease purpose”. In other words, “it is security in case of damage”, he further explains, “to building or rent defaulted”. 16. Sri Mohan Lal stresses that “premium” has not been defined under the Act—any Act. Then, he draws my attention to a judgment of this Court in Vijayaraghavan v. Joseph., 1979 KLT 699 With that, he asserts that the landlady collected premium and it should either be treated as “security or advance”. 17. Contradictory as it may sound, Sri Mohan Lal persisted with his efforts to explain away the inconvenient covenants in the lease deed. Section 65(A) imposes a condition against renewal of the lease. And the length of the lease should not exceed three years. Faced with these hurdles, Sri Mohanlal has advanced a novel argument. According to him, a mere extension of the lease does not amount to renewal. Besides that, once there is no covenant for renewal beyond three years, extension by arrangement between the landlady and the tenant, even beyond three years, does not fall foul of Section 65 A (2)(c) and (e) of the TP Act. 18. On the other hand, Sri Sain, Jayalakshmi’s counsel, has confined his submissions only to the Contempt Case. He has submitted that Jayalakshmi is a woman, deserted by her husband; she has been sustaining herself and supporting her two children with great difficulty. According to him, she vacated the secured asset as promised. 19. To elaborate, Sri Sain submits that this Court passed the judgment on 25.06.2018 and the officials visited the secured asset on 13.07.2018. Then she sought two more days. Eventually, on 15.07.2018, she vacated “the portion of the house she occupied”. At this stage, the Court queried with Jayalakshmi’s counsel why she has suppressed the alleged tenancy. In reply, the counsel has submitted that all along Jayalakshmi has bona fide believed that “she could have an amicable settlement”. About her undertaking to vacate and then defying it, he has persisted with the plea that Jayalakshmi complied with the direction. Discussion: 20. Indeed the facts are not in dispute. At no point in time has Jayalakshmi brought to the Court's notice about the alleged tenancy. On the other hand, her previous counsel, now a convenient scapegoat, agreed that Jayalakshmi would vacate the premises in fifteen days. Discussion: 20. Indeed the facts are not in dispute. At no point in time has Jayalakshmi brought to the Court's notice about the alleged tenancy. On the other hand, her previous counsel, now a convenient scapegoat, agreed that Jayalakshmi would vacate the premises in fifteen days. He has also agreed, of course, as Jayalakshmi’s statutory agent, that any violation by Jayalakshmi could be treated as willful defiance on her part. But Jayalakshmi did defy the judicial directive—rather violated her undertaking. In response to a notice in the contempt proceedings, she did not appear. Later, she appeared, but only in response to a bailable warrant. The Tenant’s Rights: 21. This Court does not intend to scuttle the tenant's proceedings before the Tribunal. At the same time, it cannot be a mute spectator to gross abuse of judicial process. There could be cases in which a debtor wanted to get rid of an inconvenient tenant and, so, would collude with the bank to have the tenant thrown out, under the cover of recovery proceedings. 22. Here, the tenant has never complained about any animosity between the landlady and the tenant. On the other hand, both the tenant and the landlady have acted in concert and in perfect synchronicity, in defending the case against the Bank. Therefore, I cannot conclude that the tenant is a victim of the landlady's machinations. 23. That said, I leave it for the Tribunal to determine the tenant’s rights if any. The Dimensions of the Dispute: 24. Indeed, the learned counsel on either side have raised various issues that, I reckon, demand answers. So let us consider them. 25. Indisputably, the judicial remedy under Article 226 is exceptional, extraordinary, and equitable, too. However meritorious the suitor's claim to relief is, his or her conduct ought to be above board. Otherwise, the Court will summarily reject the claim. Here, Jayalakshmi has clearly been disentitled to any relief. At any rate, the writ petition no longer exists; it was disposed of earlier. The conditions not complied with, the judgment has become a dead-letter. About contempt, I must say, not much of defence has the landlady set up. 26. But Jayalakshmi’s counsel persisted with his plea that she is a deserted woman, struggling to eke out her livelihood. At any rate, the writ petition no longer exists; it was disposed of earlier. The conditions not complied with, the judgment has become a dead-letter. About contempt, I must say, not much of defence has the landlady set up. 26. But Jayalakshmi’s counsel persisted with his plea that she is a deserted woman, struggling to eke out her livelihood. He has also submitted that she is not worldly wise and her previous counsel has never explained to her about “the consequences of her violating the Court's order.” 27. We need to, then, address two issues: the landlady’s contempt; the interplay between the mortgagor's right to sell the secured asset and the tenant’s right to stay put. The Tenant’s Rights: 28. On the tenant’s rights, I must examine the interplay between Section 17(4A) of the SARFAESI Act and Section 65(A) of the TP Act. Section 17 (4A) of the SARFAESI Act reads: Section 17(4A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,— (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. (italics supplied) 29. Now we will also extract Section 65A of the TP Act, and it reads: 65A. (1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. (italics supplied) 29. Now we will also extract Section 65A of the TP Act, and it reads: 65A. (1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. (2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage, (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance, (c) No such lease shall contain a covenant for renewal, (d) Every such lease shall take effect from a date not later than six months from the date on which it is made, (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid with a time therein specified. (3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of subsection (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section. (italics supplied) 30. Indeed, Section 17(4A) of SARFAESI Act, engrafted through an amendment on 01.09.2016, provides a forum for tenants to have their grievance redressed. As seen from the above extract, the Debt Recovery Tribunal can resolve all claims of tenancy or leasehold rights upon the secured asset. But to assume jurisdiction, the Tribunal must ensure that the tenancy has not expired or stood determined. Jurisdiction assumed, the Tribunal will rule on whether the lease is contrary to Section 65(A) of the TP Act, or the terms of the mortgage. It will also examine whether the lease has been created after notice of default and demand by the Bank under Section 13 (2) of the Act. 31. Jurisdiction assumed, the Tribunal will rule on whether the lease is contrary to Section 65(A) of the TP Act, or the terms of the mortgage. It will also examine whether the lease has been created after notice of default and demand by the Bank under Section 13 (2) of the Act. 31. On the other hand, Section 65(A) of the Transfer of Property Act elaborates on mortgagor’s power to lease. Section 65(A) (2)(b) mandates that every lease shall reserve the best rent and “no premium shall be paid or promised and no rent shall be payable in advance.” Under Clause (c) no lease shall contain a covenant for renewal. Eventually, Clause (e) prescribes that if the lease concerns a building, the duration of the lease shall not exceed three years. Here, the tenant himself provided a translated version of the lease deed. When the Court asked for the original, Sri Mohanlal has submitted that it was filed before the Tribunal. Material for our purpose is the second paragraph of the lease deed, allegedly executed on 24th February 2014. And it reads: “Whereas the 1st party is the absolute owner in possession of building bearing Door No.7/237 situated in an extent of 25 cents of property in Survey No. 372/18, 372/18/1 of Payippad Village, which is let out including two rooms kitchen etc. to 2nd party for residence with family with the right of use of furniture, cot, sofa set, dining table, TV etc. kept inside the building leaving one room for the occupation of 1st Party on a monthly rent of Rs.5,000/-for a period of 11 months and on receipt of advance of Rs.20,000/-and 2nd party agreed to pay rent before 5th of every month and water and current charge would be paid by the 2nd Party and building and movables would not damage and building would not use for illegal purpose other than residential purpose of the 2nd Party and 2nd Party would surrender vacant possession of the building to the 1st Party on the expiry of the time of lease. The advance amount shall be returned by the 1st Party to 2nd Party after adjusting rent arrears if any.” (italics supplied) 32. The advance amount shall be returned by the 1st Party to 2nd Party after adjusting rent arrears if any.” (italics supplied) 32. From the above extract, these factors emerge: (a) a part of the building was let out; (b) monthly rent is Rs.5,000/-; (c) the period is 11 months; (d) advance received is Rs.20,000/-; (e) the tenant should surrender the vacant possession of the building on the expiry of the lease; and (f) the advance amount “shall be returned after adjusting rent arrears if any.” 33. True, the advance is refundable, after the rent arrears are adjusted. The lease deed by itself contains no covenant for renewal. But as seen from the endorsements on the lease deed, the parties consensually extended the lease three times: on 20th January, 2015 for eleven more months with the rent enhancement by five hundred rupees; on 18.12.2016 with a revised rent of six thousand rupees for the same period, that is eleven months; and on 10.11.2017 for eleven more months, no rent enhanced, though. The Conditions Under Section 65A of the TP Act: (a) The Lease Period and Its Renewal: 34. About Section 65A and its impact on the tenancy, a learned Division Bench of this Court rules in Kelukutty P.M., v. Young Men’s Christian Association., 2016 (1) KHC 853 The petitioner borrowed four crores from the creditor bank and mortgaged its commercial building under construction. The petitioner let out the property, and the bank knew it. The lease periods ranged from 51 to 99 years, with an option to the lessee to renew the lease. The petitioner defaulting, the bank invoked Section 14 of the SARFAESI Act to evict the lessees. Then, the lessees questioned their eviction. 35. In that factual backdrop, the Division Bench has framed the following, among other, issues: (a) Should the lease conform itself to Section 65A(2) of the TP Act?; (b) If the mortgagee’s consent is to be presumed, can that consent permit the lease to violate Section 65A(2)?; and (c) on facts, should not the tenant have been dispossessed without recourse to Kerala Rent Laws? 36. Kelukutty has emphatically held that the leases granted after execution of the mortgage must conform to Section 65A (2) of the TP Act. 36. Kelukutty has emphatically held that the leases granted after execution of the mortgage must conform to Section 65A (2) of the TP Act. Pertinent is the observations in Kelukutty that mortgagee’s allowing the mortgagor to lease out the property “cannot be treated as consent for execution of a lease, contrary to the conditions stipulated in Section 65A(2)” of the TP Act. And it has, then, held that the leases not in accordance with Section 65A(2) of the TP Act cannot claim immunity from Section 14 of the SARFAESI Act. 37. To conclude thus, Kelukutty, on facts, found that the leases were executed (i) for periods ranging from 51 to 99 years, (ii) they contained renewal clauses, and (iii) Petitioner received as security advance amounts of several lakhs, refundable with interest. Kelukutty, in fact, observes that “the provisions of Section 65 (2)”—the conditions the lease should not violate—can be “varied or extended by the mortgage-deed.” But as the mortgage is equitable, that is by deposit of title deeds, such variation cannot be countenanced. 38. Eventually, Kelukutty, relies on the Supreme Court’s Harshad Govardhan Sondagar v. International Assets Reconstruction Company Ltd., (2014) 6 SCC 1 and holds that the lessees get protection from dispossession under Section 14 of the 2002 Act only if the leases accord with the statutory mandate under Section 65A of the TP Act. And the Tribunal can examine the leases, to ascertain whether they accord with Section 65A. 39. In Harshad Govardhan Sondagar, the question is whether Section 14 of the SARFAESI Act confers any power on CJM to assist a creditor in taking possession of the secured asset even if a lessee has been in possession under a valid lease deed. If a piece of immovable property is mortgaged, the borrower’s right to lease it out, according to Harshad Govardhan Sondagar, is regulated by Section 65A of the TP Act. So long as the mortgage deed does not prohibit a mortgagor from letting out the property, and so long as the lease satisfies the requirements of Subsection (2) of Section 65A of the TP Act, the lease is not only valid but also binds the secured creditor as a mortgagee. 40. Because of the law laid down in Kelukutty and Harshad Govardhan Sondagar, the lease deed between Jayalakshmi and Prasad must have conformed to the statutory mandate under Section 65A of the TP Act. 40. Because of the law laid down in Kelukutty and Harshad Govardhan Sondagar, the lease deed between Jayalakshmi and Prasad must have conformed to the statutory mandate under Section 65A of the TP Act. (b) The Rental Advance or Security: 41. I may refer to the logomachy Jayalakshmi’s counsel has indulged in, to inveigh the allegation that she had received advance, and that offends Section 65A of the TP Act. Sub-Section (2) (b) of that provision mandates that “no premium shall be paid or promised and no rent shall be payable in advance”. According to him, it is an advance. But it should be treated as security, and it is “for the lease purpose.” Yet, that advance or security—whatever name it is called with—was to ensure that the landlady's interest is secured if the tenant damaged building or defaulted on paying the rent. Then he also submitted, abandoning both the pleas of advance and security, that it must be treated as premium. For that proposition, he relies on this Court’s Vijayaraghavan v. Joseph., (1979) KLT 699 I may, therefore, refer to that judgment. 42. Section 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965, prohibits the landlord’s claiming, receiving (i) any premium or other like sum in addition to fair rent, or (ii) anything in excess of the fair rent. The proviso, however, permits the landlord to receive an amount not exceeding one month's rent, by way of advance. So Vijayaraghavan has interpreted the expression “premium”. It has first referred to King v. Earl Cadogan., (1915) 3 K.B. 485) In that case, the King’s Bench has held that 'premium' is a word of art. It is unreasonable to say that the expenditure in pulling down the old buildings and rebuilding them was a premium in any sense in which that word of art can be used. Then, it sketchily defines the word: "It is a very familiar expression to everybody who knows the forms and powers of granting leases. It is in fact that the purchase-money which the tenant pays for the benefit which he gets under the lease.” 43. In fact, Vijayaraghavan refers to many other decisions, one among them being Chief Controlling Revenue Authority v. Abdul Jamal., AIR 1970 Madras 289 The Madras High Court has distinguished premium from rent. It is in fact that the purchase-money which the tenant pays for the benefit which he gets under the lease.” 43. In fact, Vijayaraghavan refers to many other decisions, one among them being Chief Controlling Revenue Authority v. Abdul Jamal., AIR 1970 Madras 289 The Madras High Court has distinguished premium from rent. According to it, a premium is one paid in consideration of the conveyance implied in the lease and quantified in lump, whether it is paid outright, or by instalments over a period, or promised to be paid at a certain time. But a rent, while it is also in consideration of lease, is “in lieu of the enjoyment which the lessee has and particularly as consideration therefore.” The further feature of rent is, it is payable when it accrues unlike a premium, the liability for which arises at the time the contract is entered into. 44. But, I am afraid, we need not labour on what premium is. It is nobody’s case—definitely neither Jayalakshmi’s nor the lessee’s here— that the lease deed has reserved for any premium. The lease deed speaks of and provides for “advance”, period. Is It Advance or Security the Lease Deed has Provided For? 45. Black’s Law Dictionary defined “advance” as the furnishing of money or goods before any consideration is received in return. 2. The money or goods furnished. According to it, “advance payment” is a payment made in anticipation of a contingent or fixed future liability or obligation. 46. In Stroud's Judicial dictionary, 'security' is defined as anything that makes the money more assured in its payment or more readily recoverable; as distinguished from, for example, a mere I.O.U., which is only evidence of a debt. In Ramanath Aiyar’s The Major Law Lexicon, 4th Ed., Lexis Nexis, Vol.6, p.6174 7 the term 'security' is defined, among its numerous meanings, to signify “that which makes secure or certain. “In its proper use, it relates to pecuniary matters, and often consists of a promise or right with or without possession.” It implies “in its common acceptation that which prevents loss or makes safe.” 47. In Vijayaraghavan, Section 8 of the Rent Act prohibits only two kinds of payments: any premium or other like sum, and an advance of more than one month's rent. Premium is the price the tenant pays for getting the building on rent. In Vijayaraghavan, Section 8 of the Rent Act prohibits only two kinds of payments: any premium or other like sum, and an advance of more than one month's rent. Premium is the price the tenant pays for getting the building on rent. The tenant will have no right for the return of the same under common law. Any 'other like sum' also will be of the same nature because these words must be read ejusdem generis with premium. 48. In that context, Vijayaraghavan holds that the tenant will have a right to get back the amount he deposits with the landlord as security, so it cannot be called a premium or other like sum. The purpose underlying the security deposit is safeguarding against any possible loss on default in payment of rent. From its very nature the amount paid by way of security deposit has to be returned to the person who has given it. But when ? Only on the closure of the transaction. So, as cash security can never be a premium or other like sum, it cannot also be an advance rent taken by the landlord. In the end, Vijayaraghavan holds that the lessee’s taking a security at the time of his granting a lease is not hit by Section 8 of the Act. “The refund or adjustment under Section 8(2)(c)” it further observes, “arises only in the case of payments prohibited under Section 8(2)(b).” I am afraid Vijayaraghavan rescues neither Jayalakshmi nor Prasad. 49. On the other hand, Section 65A of the TP Act prohibits both premium and advance. True, it does not speak about security. But in the lease deed between Jayalakshmi and Prasad, “the advance amount shall be returned by the 1st Party to 2nd Party after adjusting rent arrears if any.” So inevitably, the amount described as advance in the lease deed is advance, and nothing else. And it is prohibited. Renewal of Lease—Unwritten, Yet Enforced: 50. The next limitation Section 65A of the TP Act imposes is that the lease shall contain no covenant for renewal. The lease deed between Jayalakshmi and Prasad contains no covenant for renewal—literally. Just literally. But both had the lease renewed on more than one occasion, to be precise on three occasions. Indeed, Prasad’s counsel contends that the lease deed did comply with, or does not violate, Section 65A of the TP Act. 51. The lease deed between Jayalakshmi and Prasad contains no covenant for renewal—literally. Just literally. But both had the lease renewed on more than one occasion, to be precise on three occasions. Indeed, Prasad’s counsel contends that the lease deed did comply with, or does not violate, Section 65A of the TP Act. 51. Whatis absent as a recital is very much present in the practice. Too literal a reading of a provision stultifies a statute, kills its spirit. We cannot, after all, miss the forest for the trees. If Prasad’s argument is accepted, that is the surest and the shortest way to frustrate a legislative mandate: do not mention something, but have it anyway. I am afraid such an interpretation as Prasad would have us adopt fails judicial scrutiny. Duration of Lease: 52. Section 65A of the TP Act poses another hurdle, too. The duration of the lease “shall in no case exceed three years.” As is the case with the condition of renewal, there is no covenant in the lease deed that enables the parties to have the lease extended beyond three years. But in practice, both Jayalakshmi and Prasad had the lease extended, by now, beyond three years: created in February 2014, the lease allegedly continues even now. 53. So applying the same reasoning as applied to the renewal, I hold that the parties to the lease deed, in practice, violated this condition, as well. Should the Lease Deed Have Been Registered? 54. A collateral question though, we will examine whether the lease deed should have been registered. If is for imparting completeness to our discussion. Under Section 107 of TP Act, a “lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.” All other leases of immovable property may be made either by a registered instrument or by oral agreement, accompanied by delivery of possession. On the same lines, Section 17(1)(d) of the Registration Act mandates that “leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.” 55. In Harshad Govardhan Sondagar, the appellants have relied on the written instrument: lease deed. In that context, the Supreme Court has referred to observed that Section 107 of the TP Act. In Harshad Govardhan Sondagar, the appellants have relied on the written instrument: lease deed. In that context, the Supreme Court has referred to observed that Section 107 of the TP Act. Then it has held that if the appellant claims that he is entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by Jayalakshmi. Indeed, in Vishal N. Kalsaria v. Bank of India, (2016) 3 SCC 762 the Supreme Court has referred to Harshad Govardhan Sondagar. It has, first, affirmed that if the debtor wants to create leasehold rights, the creditor must have consented. Then the co-equal Bench clarifies that Harshad Govardhan Sondagar has not stated anything “to the effect that the tenancy created after mortgaging the property must necessarily be registered under the provisions of the Registration Act and the Stamp Act.” 56. No doubt, the registration of a particular document depends, primarily, on the Registration Act. And, in some instances, other statutes, such as the TP Act, may also compel a document to be registered. As the registration lies in the Concurrent List of the Constitution, the State amendments assume importance. 57. Here, the deed is styled as a lease deed. It was executed for less than one year. To me, the Registration Act, as it applies to the State Kerala, does not compel registration—unlike, for example, the States of Andhra Pradesh and Gujarat—for a period less than one year. 58. In Sivan V. R. v. Authrised Officer, Federal Bank, 2015 (1) KHC 227 this Court has observed, on facts, that the tenant had an unregistered lease deed. So the tenant could have the benefit of the unregistered lease deed for one year “from the date of the instrument or from the date of delivery of possession. Once that period is over, the tenant could get no further relief. 59. To sum up, neither Section 65A of the TP Act nor Section 14 of the SARFAESI Act affects the statutory position on the registration of a lease deed. Even Harshad Govardhan Sondagar, as clarified by Vishal N. Kalsaria, speaks about the consequences that flow from an unregistered document—an unregistered document in the context of the Registration Act that governs the place of litigation, so to say. 60. Even Harshad Govardhan Sondagar, as clarified by Vishal N. Kalsaria, speaks about the consequences that flow from an unregistered document—an unregistered document in the context of the Registration Act that governs the place of litigation, so to say. 60. Harshad Govardhan Sondagar also underlines the primacy of Section 35 of the SARFAESI Act: if any provision under any other Act conflicts with that in the SARFAESI Act, the provision under the SARFAESI Act prevails. Besides that, Harshad Govardhan Sondagar notices the difficulties the unregistered lease deeds present. It holds that if a lessee claims possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce the registered instrument in his favour by Jayalakshmi. If he fails to produce that instrument but, instead, relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the CJM will have to conclude that the lessee is not entitled to the possession of the secured asset for more than a year. 61. Because of the statutory mandate under the SARFAESI Act, no tenant, I reckon, can hang on to the statutory facilitation of “holding over”, as engrafted in Section 116 of the TP Act, or the common-law notion of “at sufferance”. Renewal or Extension: 62. Section 17(4A) mandates that the lease must have been subsisting. Here, the initial lease was only for eleven months. To get over Section 17(4)(a), Prasad relies on the extension of the lease, for Section 65(A) prohibits only renewal of the lease. In fact, Prasad contends that ‘extension’ is different from ‘renewal’; the terms remaining unchanged, the lease only gets extended—not renewed. But the record reveals that on every occasion, save the last one, there had been rent enhancement. That is why it cannot be termed a mere extension if there existed any difference between an extension and a renewal. I see none though. The very translation provided by the tenant does indicate that it is advance the landlady received, and Section 65(a)(2)(b) prohibits any rent taken in advance. Further, the lease deed also reveals that even if the amount were to be treated as security, it is to hedge the tenant's default in rent. In that sense, it is an amount taken in advance to prevent any default and to adjust the amount on default. Further, the lease deed also reveals that even if the amount were to be treated as security, it is to hedge the tenant's default in rent. In that sense, it is an amount taken in advance to prevent any default and to adjust the amount on default. Therefore, the lease deed squarely falls within the mischief of Section 65(A) and thus falls foul of Sub Section 2 Clause (b), (c) and (e) because even the lease stood extended beyond three years. 63. Now, here comes a procedural hurdle. Vijayalakshmi, as the borrower, filed the writ petition. Because of her conduct, after its disposal came the contempt case. The tenant is a part of the contempt case, but not to the writ petition. The Jayalakshmi’s counsel, Prasad’s counsel, and the Bank's counsel have advanced comprehensive arguments covering all aspects. Then the question is, in contempt proceedings can this Court issue a positive direction—a la mandamus— against the tenant? First, as already noted, Prasad was not a party to the writ petition, now closed. The contempt proceedings cannot be extended to Prasad unless the Bank alleged that Vijayalakshmi and Prasad conspired or colluded to defeat the judgment, the judicial directive. But the Bank did not. On the contrary, Prasad has been asserting his alleged independent right before another forum. 64. I reckon this Court possesses extraordinary powers under Article 226, more particularly when the parties attempted to abuse its process. I must also, in the same breath, accept that one person’s machinations should not affect another person’s substantial rights. It is all the more so if the other person played no role in the abuse of process. The tenant may have his right and he does want to establish that. But I have heard him extensively and ruled on all his objections. On Contempt: 65. Taking into account the totality of the circumstances, I reckon that Jayalakshmi is a single woman with two children, struggling to stay afloat in the currents of economic crises, perhaps. True, her financial difficulties may have influenced her to take devious steps to dislodge or disobey the judicial orders, only hoping that she could have a better tomorrow and the problems will vanish by then. But that was not to be. Nor can such a hope justify her conduct. 66. True, her financial difficulties may have influenced her to take devious steps to dislodge or disobey the judicial orders, only hoping that she could have a better tomorrow and the problems will vanish by then. But that was not to be. Nor can such a hope justify her conduct. 66. Under these circumstances, though her conduct is contemptible, I decide to take a lenient view, condone Jayalakshmi’s conduct, and drop the contempt proceedings—mainly because of the contrition of heart she has expressed through her counsel. On the Tenancy: 67. To conclude, I hold that under the circumstances already narrated, the Court does not intend to take any contempt proceedings against Jayalakshmi, though her conduct does make out a prima facie case. And, about the Prasad’s rights as the alleged tenant, the Court refrains from deciding the issue. That said, I also hold that the Debt Recovery Tribunal, where the SA is pending, will consider the observations in this judgment, when it determines the issue of tenancy. 68. Though I have closed the contempt case, the observations made on merits concerning the tenancy and the interplay between Section 17(4)(a) and Section 65(A) stand. The respondent Bank may place this judgment before the Debt Recovery Tribunal and press its cause, to have the interim order vacated. With these observations, I close the Contempt Case.