1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Kanade, learned counsel for the Petitioner, Mr. Devlekar, learned counsel for Respondent No.1-Bank, and Mr. Alaspurkar, learned A.G.P. for Respondent No.4-State.
2. By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 9th February 2018 passed by the Chief Metropolitan Magistrate, Mumbai, below 'Exhibit-9' in Case No.72/SA/2017.
3. The application at 'Exhibit-9' was filed by the present Petitioner in his capacity as an 'Intervenor', claiming himself to be a 'tenant' in the Secured Assets. It was contended by him that, as per the 'Agreement of Tenancy' dated 30th March 2000, he is a bonafide tenant of the attached property. In this respect, reliance was placed by learned counsel for the Petitioner on the Judgment of the Apex Court in the case of Vishal N. Kalsaria Vs. Bank of India and Ors., (2016) 3 SCC 762, to submit that, the Petitioner cannot be dispossessed or evicted from the attached property, without following the due procedure of law.
4. The Trial Court has, however, holding that the issue of tenancy has to be decided by the Debt Recovery Tribunal and he is not required to look into it, vide order dated 29th December 2017, rejected the said application and allowed the Application of Respondent No.1-Bank filed under Rule 107(11)(vi)(a) of the Maharashtra Co-operative Societies Rules, 1961. The Special Recovery Officer was, accordingly, allowed to take possession of the attached property.
5. Against this order of the Trial Court, the Petitioner has approached this Court by filing Writ Petition No.212 of 2018 and this Court has, vide its order dated 23rd January 2018, set aside the said order, remanding the matter back to the Trial Court for fresh hearing on 'Exhibit-9', after giving an opportunity of hearing to both the parties on all the aspects, including the issue of tenancy.
6. Thereafter, the Trial Court has again heard learned counsel for both the parties and passed the impugned order rejecting the application at 'Exhibit-9'.
7. This order of the Trial Court is challenged in this Writ Petition by learned counsel for the Petitioner by submitting that, the Trial Court has relied upon the Judgment of the Apex Court in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Ors., (2014) 6 SCC 1, to hold that, 'The alleged tenant has to produce proof of execution of a registered instrument in his favour by the 'Lessor' and when he does not produce such proof and relies only on an unregistered instrument or oral agreement, accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the Secured Assets for more than a year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.'
8. It is urged that, this stand taken up by the Apex Court in the case of Harshad Govardhan Sondagar (Supra), was re-considered by the Apex Court in the case of Vishal N. Kalsaria (Supra) and it was held in paragraph No.30 of the said Judgment that, 'Mere factum of non-registration of the 'Instrument/Deed' will not make the lease itself nugatory. If no written 'Lease Deed' exists, then, such tenants are required to prove that they have been in occupation of the premises as 'tenants', by producing such evidence in the proceedings under Section 14 of the SARFAESI Act before the learned Magistrate.'
9. It is urged that, in the instant case, therefore, merely because the registered instrument of 'Lease Deed' is not produced, the Trial Court has refused to accept the tenancy of the Petitioner and hence, this finding of the Trial Court is required to be quashed and set aside, as it is not in accordance with law. Further it is submitted that, the Trial Court has brushed aside the documentary evidence produced on record by the Petitioner; namely, the rent receipts, and the order of interim injunction passed by the Small Causes Court, Bombay, in R.A.D. Suit No.549 of 2014, in which the 'landlord' was restrained from disturbing possession of the Petitioner in the suit property. The said order was passed on 1st November 2014 and it clearly goes to show that the Petitioner is in possession of the suit premises as a 'tenant'. However, the Trial Court has not considered the said evidence only on the count that, Respondent No.1-Bank was not party to the said proceedings and, therefore, that order of the Small Causes Court is not binding upon Respondent No.1- Bank.
10. Thirdly, it is submitted that, the Trial Court has, in paragraph No.12 of its Judgment, relying upon the decision of the Apex Court in the case of Vishal N. Kalsaria (Supra), held that, 'In view of amended provision of Section 17(4A) of the SARFAESI Act, the issue of tenant/lessee/third person has to be decided by the Debt Recovery Tribunal and this Court has no jurisdiction to deal with it'.
11. It is urged that, none of these findings of the Trial Court can be upheld in law and, therefore, the impugned order passed by the Trial Court needs to be quashed and set aside.
12. Per contra, learned counsel for Respondent No.1-Bank has supported the impugned order passed by the Trial Court by pointing out that, in the instant case, there is apparent collusion between the Petitioner and the landlord. The Suit is filed by the Petitioner only after the 'Recovery Certificate' was issued in favour of Respondent No.1-Bank. All the documents, which are produced by Respondent No.1-Bank before the Trial Court and before this Court, also show that, as on today also, the 'landlord' is in possession of the suit premises and, therefore, there is hardly any substance in the plea of tenancy raised by the Petitioner.
13. I have given my thoughtful consideration to the submissions advanced at bar by learned counsel for both the parties.
14. It may be stated that, while deciding the Petition under Rule 107(11)(vi)(a) of the Maharashtra Co-operative Societies Rules, 1961, the Court has only to consider whether the 'Intervenor', in this case the Petitioner, is in possession of the suit premises, as claimed by him in his capacity as a 'tenant'. Even if it is accepted that the registered instrument of lease is not necessary to prove the tenancy, there has to be some convincing evidence to show that the Petitioner is actually in possession of the suit premises. Here in the case, entire reliance of the Petitioner is on the order passed by the Small Causes Court, Bombay, thereby granting relief of interim injunction, restraining the 'landlord' from causing obstruction to the possession of the Petitioner in the suit premises. However, as rightly submitted by learned counsel for Respondent No.1-Bank, the said Suit was filed by the Petitioner only after the 'Recovery Certificate' was issued and it is pertinent to note that, against the said order, the 'landlord' has not preferred any Appeal or challenged the same.
15. Thus, prima facie, when there is no registered 'Deed of Lease' and the entire reliance is placed on the unregistered instrument, which was executed before the Notary, and considering the fact that such Suit was filed only after the 'Recovery Certificate' was issued and against the order passed therein, the 'landlord' has not preferred any Appeal, apparently, the possibility of such Suit being collusive cannot be ruled out. On the basis thereof or on the strength of rent receipts, it becomes difficult to accept the bonafides of the claim of the Petitioner of being in possession of the suit premises as a 'tenant'. Especially in the absence of any documentary evidence to show that the Petitioner is actually in possession of the suit premises, prior to or, for that sake, even subsequent to the the order passed in the Suit by the Small Causes Court, Bombay. Neither there is electricity bills, nor telephone bills, nor Municipal tax bills, correspondence, Shop Act Licence, not a single document worth the name to prove his possession in the suit premises. As can be seen from the impugned order passed by the Trial Court, all the documents produced on record by Respondent No.1-Bank go to show that, all along, it is the 'landlord' only, who is in possession of the suit premises. Those documents are also issued by totally independent authorities. The first document is the letter dated 29th January 2018 issued by the 'Andheri Vertex Vikas Premises Co-operative Society Limited', wherein suit property is situate, clearly stating that, 'they have not received any application from the 'landlord', namely, 'M/s. Shehnai Banquet Hall' or its owners seeking permission from the Society to let/rent/lease/sublet the said property'. Needless to state that, the property being the part of 'Andheri Vertex Vikas Premises Cooperative Housing Society', it cannot be sublet or given on rent, without permission of the said Society. If the suit property was let-out, as stated by the Petitioner, in the year 2000 itself, then, there should have been such permission from the said Society. 16. Even the 'Valuation Report', dated 10th October 2014, which was prepared, at the time of sanction and disbursement of the loan, by M/s. H. Mehta and Associates, goes to show that the 'landlord' was in possession of the suit premises. Apart from that, even the Shop Act Licence, till today, stands in the name of the 'landlord' - 'M/s. Shehnai Banquet Hall', as can be seen from the document dated 29th January 2018. The 'Panchanama' dated 8th August 2014, conducted by the Special Recovery Officer Mr. Nandkishor Sawant, also makes it clear that it is the 'landlord', who is in possession of the attached property.
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br />17. Thus, none of the documents produced on record support the case of the Petitioner that he is actually in possession of the suit property and that too in his capacity as a 'tenant'. 18. In such situation, it cannot be said that the Trial Court has committed any error in rejecting the claim of the Petitioner and holding that the Petitioner has failed to establish such plea of tenancy. Therefore, his application is rightly rejected by the Trial Court. 19. Hence, no interference is warranted, in the writ jurisdiction of this Court, in the impugned order passed by the Trial Court. The Writ Petition, therefore, stands dismissed. 20. Rule is discharged. 21. At this stage, learned counsel for the Petitioner prays for stay of four weeks to the operation of this order; whereas, learned counsel for Respondent No.1-Bank submits that, for actual sale of the property, atleast 45 days are required and for taking possession also, 15 days notice is required. In view thereof, there is no need to stay the order of this Court; hence, the prayer for stay is rejected.