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2019 DIGILAW 451 (TS)

Seating World Extension v. State Bank of India

2019-12-27

A.ABHISHEK REDDY, R.S.CHAUHAN

body2019
JUDGMENT : 1. The present writ petition is filed assailing the orders of the learned Chief Metropolitan Magistrate, Nampally Criminal Courts at Hyderabad, passed in Cri.M.P. No. 79 of 2019 in S.R. No. 2115 of 2018; dated 22.11.2019, whereby the application filed by the respondent-Bank under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Securitization Act') to take physical possession of the schedule property and handover the same to the Bank by appointing an Advocate - Commissioner, was allowed and an Advocate by name Smt. Namala Sujatha was appointed as an Advocate-Commissioner to take physical possession of the petition schedule property, and to handover the same to the Bank. 2. The petitioner herein, who claims to be the tenant of the petition schedule property and in physical possession of the property, has filed the present writ petition contending that he was in physical possession and enjoyment of the property on the basis of an unregistered lease, dated 02.04.2011, and the subsequent renewal lease deed, dated 01.01.2017, which was renewed for a period of 15 years, for a monthly rent of Rs. 5,50,000/-. He has spent considerable amount in establishing the furniture business. In case, the impugned order is not set aside, he will be put to great and irreparable loss and the same will not only affect his business substantially, will destroy the goodwill that he has gained in the market over the years and financially ruin him. 3. The learned Counsel appearing for the petitioner has vehemently argued that the impugned order passed by the learned Chief Metropolitan Magistrate is contrary to the law laid down by the Hon'ble Supreme Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Ltd. and Ors., (2014) 6 SCC 1 : AIR Online 2014 SC 294: The Tribunal without giving any opportunity; or hearing to the petitioner, has passed the impugned order, and hence, the same is liable to be set aside. It is the further contention that after taking the premises on lease under an unregistered lease, dated 02.04.2011, the lease was renewed by lease deed, dated 01.01.2017, for a further period of 15 years. The petitioner has spent considerable amount in establishing the shop and is paying the monthly rent of Rs. 5,50,000/- to the landlord. It is the further contention that after taking the premises on lease under an unregistered lease, dated 02.04.2011, the lease was renewed by lease deed, dated 01.01.2017, for a further period of 15 years. The petitioner has spent considerable amount in establishing the shop and is paying the monthly rent of Rs. 5,50,000/- to the landlord. Subsequently, when the landlord committed default in repaying the loan amount to the Bank, the petitioner is paying the monthly rent of Rs. 5,50,000/- to the Bank directly. Hence, the impugned order passed by the learned Chief Metropolitan Magistrate, is not only illegal, but the same also amounts to dispossessing the petitioner-tenant without following the due process of law. The further contention of the petitioner is that the learned Chief Metropolitan Magistrate was not right in passing the impugned order without giving any notice or opportunity of hearing to the petitioner, who is admittedly a lessee in the premises, which is also the subject-matter of the Second Appeal before the Debts Recovery Tribunal-I, Hyderabad. Moreover, without conducting any enquiry, the impugned order is passed appointing an Advocate-Commissioner to take physical possession of the schedule property. If the impugned order were not set aside, the Advocate-Commissioner will dispossess the petitioner, which will not only result in irreparable loss and hardship to the petitioner, but would also cause damage to the goods, which are lying in the subject premises. 4. Heard Sri T.V. Kalyan Singh, the learned Counsel appearing for the petitioner, and perused the record. 5. As seen from the record, the petitioner claiming to be the lessee of the premises in question, had earlier filed S.A. No. 305 of 2017 before the Debts Recovery Tribunal-I, Hyderabad. By order, dated 10.07.2018, the learned Tribunal has held that the alleged lease deed was created subsequent to the creation of the mortgage over the property in favour of the Bank. Thus, the same is contrary to Section 65-A of the Transfer of Property Act. Consequently, the learned Tribunal dismissed the Second Appeal No. 305 of 2017. Aggrieved by the order of the Tribunal passed in S.A. No. 305/2017, the petitioner herein has filed a writ petition which was numbered as W.P. No. 24400 of 2018. Thus, the same is contrary to Section 65-A of the Transfer of Property Act. Consequently, the learned Tribunal dismissed the Second Appeal No. 305 of 2017. Aggrieved by the order of the Tribunal passed in S.A. No. 305/2017, the petitioner herein has filed a writ petition which was numbered as W.P. No. 24400 of 2018. While upholding the order of the Tribunal and dismissing the Writ Petition, this Court has held as follows: "Therefore, the petitioner, who is admittedly not a statutory tenant and whose two lease deeds create any number of doubts on the manner in which they have come into existence, cannot resist the attempt of the bank to take physical possession under the 2002 Act. The question of estoppel does not arise in cases of this nature, as the acceptance of the monthly amounts would not create a lease in favour of the petitioner." Thereafter, the petitioner has approached the Hon'ble. Supreme Court vide S.L.P. No. 10676/2019. But the S.L.P. was also dismissed on 08.05.2019. Admittedly, in the present case, on the earlier occasion, this Court has already held that the petitioner is not a statutory tenant and that the two lease deeds, on which the petitioner is relying, are doubtful. Hence, the petitioner cannot resist the attempt of the bank to take physical possession under the Act. The impugned proceedings are nothing but culmination of the process set in motion by the secured creditor to realise the amounts due to it. The petitioner, having lost in the earlier round of litigation, which went up to the Hon'ble Supreme Court, cannot re-agitate the same grounds which were raised earlier and rejected by the Court. As a matter of fact, the petitioner does not have any locus to challenge the impugned order passed by the learned Chief Metropolitan Magistrate in view of the earlier finding that the lease deed relied by him is doubtful, and the said finding has become final. 6. The other contention of the petitioner that the orders of the Hon'ble Supreme Court in Harshad's case (supra) were not followed, has already been dealt with by the Tribunal in the earlier round of litigation and upheld by this Court. Hence, the same is of no help to the petitioner. 7. 6. The other contention of the petitioner that the orders of the Hon'ble Supreme Court in Harshad's case (supra) were not followed, has already been dealt with by the Tribunal in the earlier round of litigation and upheld by this Court. Hence, the same is of no help to the petitioner. 7. When this Court was about to pass order, the learned Counsel for the petitioner has requested the Court that sometime may be granted to the petitioner to vacate the subject premises, as huge stock is lying in the subject premises, and if the Advocate-Commissioner is allowed to take physical possession of the subject premises, he will suffer huge financial loss besides damage to the goods. 8. Having regard to the peculiar facts of the case, we deem it appropriate to grant time to the petitioner till the end of March, 2020, to vacate the subject premises, subject to the following conditions: (i) The petitioner will file an undertaking before the Chief Metropolitan Magistrate, Nampally Criminal Courts at Hyderabad, by 31-01-2020 to the effect that he will vacate the premises by 31.03.2020 without fall and will not file any application seeking extension of the time to vacate the premises. (ii) He will continue to pay the rent of Rs. 5,50,000/- for every month including the month of March, 2020, to the Bank as is done now. (iii) He will continue to pay the monthly consumption charges as levied by the concerned Departments of Electricity, Water, Sewerage etc. 9. In view of the above mentioned facts and circumstances of the case, the writ petition is dismissed. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.