w w w . L a w y e r S e r v i c e s . i n



Ravi Bharath Gas Agency Proprietor S R Shyam Sundar v/s State Bank of India


Company & Directors' Information:- SHYAM CORPORATION PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC060509

Company & Directors' Information:- SHYAM SUNDAR LTD [Active] CIN = U51909WB1951PLC019815

Company & Directors' Information:- GAS CORPORATION INDIA LIMITED [Strike Off] CIN = U40200BR1993PLC005536

Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- SHYAM AGENCY PRIVATE LIMITED [Active] CIN = U51102KA2005PTC035897

Company & Directors' Information:- SHYAM SUNDAR & CO. PRIVATE LIMITED [Active] CIN = U51109WB2008PTC126663

Company & Directors' Information:- SHYAM & SHYAM (INDIA) PVT LTD [Active] CIN = U23101WB1983PTC036757

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- RAVI AND COMPANY LIMITED. [Strike Off] CIN = U74300JK1997PLC001627

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- SHYAM G LTD [Strike Off] CIN = U36911RJ1984PLC002921

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- SHYAM COMPANY LIMITED [Strike Off] CIN = U17111UP1946PLC001423

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

    SA/192 of 2019

    Decided On, 15 June 2020

    At, Debts Recovery Tribunal Chennai

    By, THE HONOURABLE DR. N.V. BADARINATH
    By, PRESIDING OFFICER

    For the Appearing Parties: -------



Judgment Text

1. Assailing the measure of obtaining the actual possession of the application schedule mentioned property initiated by the 1st respondent, pursuant to the order of the District Magistrate and District Collector, the 2nd respondent herein made in Rc.No.M3/21164/2017 dated 10.4.2018, the applicant filed this Securitization Application, inter alia, contending that the said measure is not in conformity with the mandatory provisions of the SARFAESI Act and the Rules made thereunder and prayed the Tribunal to set aside the same and to forbear the respondents from evicting or otherwise interfering with the applicants possession/occupation of the property /premises described in the schedule during the lease period and to pass such further or other orders as the Tribunal may deem fit and proper.2. The gist of the application is that the applicant is a licensed distributor of Bharat Petroleum Corporation Limited (BPCL for short), a Government of India Undertaking. It is stated that as per the requirement of BPCL, the lease need to be for a minimum period of 16 years and the minimum deposit was required to be made was not less than Rs.10.00 lakhs in any of the public sector banks. Accordingly, the applicant deposited Rs.10.00 lakhs into fixed deposit account with State Bank of India, George Town Branch. 2.1 It is stated that the applicant sought lease of the land more fully mentioned in the schedule of the applicant with its owners viz. respondent 4 and 5 and entered into long term lease deed on 15.102013 for a period of 16 years which was registered as document No.7061/2013 for running a gas distribution agency. 2.2 It is stated that subsequently the applicant was selected for dealership under special category and the applicant was awarded the license contract vide letter dated 3.1.2014 and the BPCL communicated the award of domestic LPG distributorship at the specified location. Thereafter, the letter of intent dated 10.2.2014 was issued to the applicant and the applicant was given necessary licenses/certificates/NOCs for the purpose of running the LPG dealership. 2.3 It is stated that subsequently the applicant established a showroom with an investment of about Rs.25.00 lakhs in a property owned by his mother at Adyar and the applicant commenced the business of LPS distribution from and out of the said premises from the month of January/February, 2015 onward and has been running the said business uninterruptedly to the satisfaction of both BPCL and end customers. 2.4 While so, it is stated that three years after the applicant took the land on lease, the applicant came to know that State Bank of India, the first respondent herein issued notice dated 21.9.2016 under Section 13 (2) of the SARFAESI Act to 4th and 5th respondents herein demanding payment of outstanding due within 60 days. It is stated that the first respondent bank proceeded to issue Possession Notice under Section 13(4) of the Act purporting to take formal possession of some of the properties belonging to 4th and 5th respondents herein including the aforesaid premises, as the applicants lessors i.e. 4th and 5th respondents have availed loan from the 1st respondent. It is stated that although the applicant is a bona fide tenant in occupation of the premises, no notice or order has been served on the applicant. 2.5 It is stated OS No.415/2017 filed by the applicant for permanent injunction and the IA No.1151/2017 filed by 1st respondent bank were dismissed by a common order dated 28.4.2018 passed by Ld. Principal District Munsif Judge, Alandur. It is stated against the said order the 1strespondent bank filed CRP No.2128/2018 before Honble High Court and an interim stay of the proceedings has been granted. It is stated that the applicant has also filed CMA challenging the order dated 28.4.2018, which is pending before the District Court, Chengalpet. 2.6 It is stated while so, the Territory Manager of BPCL forwarded letter dated 29.4.2019 addressed to them by the 1st respondent bank requesting BPCL to initiate necessary action against the applicant and also to cooperate with the 1st respondent bank for taking physical possession of the property. It is stated that the proceedings bearing RC No.21164/2017/M3 dated 4.1.2019 addressed by the District Collector i.e. the 2nd respondent herein to the Asst. Commissioner of Police, Neelangarai was also enclosed with the letter dated 29.4.2019. 2.7 It is stated that only through the letter of BPCL, the applicant came to know that an order under Section 14 of SARFAESI Act has already been passed by the 2nd respondent. Subsequently, another letter dated 13.5.2019 has also been addressed to BPCL by the bank seeking to comply with the order of the 2nd respondent dated 10.4.2018. It is stated that the said order containing a direction to take physical possession of the property was passed at the instance of the 1st respondent bank behind the applicants back for the dues payable by respondents 4 and 5. 2.8 It is stated that the applicant submitted a detailed representation on 17.5.2019 to the 2nd respondent to furnish a copy of the order dated 10.4.2018 and also submitted a letter dated 20.5.2019 to the Tahsildar the 3rd defendant herein to furnish a copy of the order aforesaid order to the applicant. On perusing the said order, the applicant came to know that the 3rd respondent has been authorized to take possession of the property only after due verification of genuineness of land records and also to verify whether any tenancy occupation is prevalent there with proper agreements and after following due process of law to proceed to take possession of the said property. 2.9 It is stated that the order obtained by the 1st respondent is arbitrary and violative of the principles of law. It is stated that the action taken by 1st and 3rd respondents is in complete violation of law laid down by the Honble Supreme Court of India in re, Vishal N. Kalsaria Vs. Bank of India reported in 2016 (3) SCC762. 2.10 It is stated that the impugned order was never served on the applicant and lease entered into between the applicant and BPCL expires only in the year 2029. It is stated that the 1st respondent bank is showing enormous interest in taking physical possession than the purchaser, who is the 6th respondent herein. It is stated that even if the 6th respondent is a bona fide purchaser, the applicants rights under the registered lease are not extinguished. It is stated that the lease hold rights of the applicant are duly secured under the registered lease deed dated 15.10.2013, which subsists for a period of 16 years from 2013 onwards and that the lease will expire only in the year 2029. It is stated that the applicant is protected under the provisions of the Transfer of Property Act and the 1st respondent bank has no right or authority to disturb the lease. 2.11 It is stated that the applicant is engaged in LPG distributorship which is in the realm of public interest and the object of such a long term lease is to ensure that the gas agencies are not constrained to vacate or relocate at short intervals, which would cause hardship to the consumers viz. the public at large. It is stated that the tenancy of the applicant is not contrary to Section 65A of Transfer of Property Act, 1882 and that the tenancy is not contrary to the terms of mortgage and that the tenancy is created before issuance of notice under Section 13 (2) of the Act. 2.12 In the grounds of the application, the applicant stated that the action of the 1st respondent bank through the 2nd respondent is whimsical and the impugned order is in violation of the provisions of the SARFAESI Act and the Rules made thereunder. The impugned order has been passed behind the back of the applicant and no notice of hearing has been given to him. It is stated that steps are being taken to dispossess the applicant by the 3rd respondent at the instance of 1st defendant bank without following due process of law. It is stated that tenant can be evicted only after following due process of law as held by the Honble Supreme Court of India in Vishal N. Kalsaria, supra. It is stated that the superstructure has not been mortgage to the 1st respondent bank nor sold to the 4th respondent. It is stated that the 1st respondent bank has no jurisdiction over the superstructure that houses the godown of the applicants business. It is stated that the 2nd respondent ought to have verified the nature of property and nature of interest in favour of the applicant. The 2nd respondent has failed to exercise power/discretion provided under the Act and mechanically ordered delivery of possession in a routine manner without application of mind. Thus contending, Ld. Counsel prayed the Tribunal to set aside the order dated 10.4.2018 passed by the 2nd respondent in RC No.M3/21164/2017. 2.13 Ld. Counsel for the applicant relied on the following documents and the rulings in support of his case.a)Application submitted by applicant to BPCL dated 8.10.2013b) Applicant deposited Rs.10.00 lakhs into fixed deposit account with SBIc) Registered lease deed for 16 years dated 15.10.2013 between the applicant and with 4th and 5th respondents.d) Award of LPG Distributorship in favour of the applicant dated 3.1.2014e) Letter of Intent issued by BPCL dated 10.2.2014f) Registration with Commercial Tax Department dated 4.3.2014g) Approval issued by Member Secretary, Tamil Nadu State Coastal Zone Management Authority and Director of Environment dated 9.5.2014h) Building approved by the Coastal Zone Management Authority dated 10.6.2014i) License issued by Explosives Department dated 1.10.2014j) Terms and conditions of the award of contract issued by BPCL dated 23.12.2014k) Insurance Policy taken in respect of suit premises dated 24.12.2014l) E-auction sale notice dated 17.12.2016m) Notice under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 for public e- auction to be held on 26.7.2017 dated 28.6.2017.n) Plaint in OS No.415/2017 dated 29.8.2017 on the file of Ld. Principal District Munsif, Alanduro) IA 989/207 seeking interim injunction filed in OA No.415/2017 dated 14.9.2017p) Affidavit and petition in IA No.1151/2017 in OS No.415/2017 dated 14.9.2017r) Order in IA 989/2017 and 1151/2017 in OS No.415/2017 passed by Ld. Principal District Munsif, Alandurs) Affidavit of Mr. Rajagopal in CRP No.2128/2018 dated 20.7.2018t) Interim order passed by Honble High Court in CRP No.2128/2018 dt 13.8.2018u) CMA filed by applicant before the Principal District Judge, Chengalpet.v) Letter from 3rd defendant bank to the Territory Manager of BPCL dated 29.4.2018w) Communication of 1st respondent to Asst. Commistsioner of Police, Neelangarai dt 4.1.19x) Letter sent by 1st respondent bank to BPCLy) Representation submitted by the applicant dated 17.5.2019z) Representation submitted by the applicant dated 20.5.2019 aa) Impugned order passed by the District Collector, Kancheepuram dated 10.4.2018 bb) Writ Petition filed by the applicant in WP No.16239/2019 before the Hon. High Court 2.14 Ld. Counsel for the applicant relied upon the following rulings in support of his case.a) Vishal N.Kalsaria Vs. Bank of India and others reported in 2016 (3) SCC 762.b) Park View Enterprises Vs. State Government of Tamil Nadu reported in MANU/TN/0100/1989c) Harshad Govardhan Sondagar Vs. International Asset Reconstruction Company Limited & others reported in (2014) 6 SCC 1.3. Per contra, the first respondent bank in its counter while denying the averments and allegations as made in the application, stated that the present application against the order dated 10.4.2018 passed by the District Collector since admittedly filed after 45 days from the date of passing the order by the 2nd respondent the application is barred by limitation. It is stated that the applicant herein has been arrayed as 14threspondent in the petition filed under section 14 of the Act before the 2nd respondent, as such the applicant is fully aware of the entire proceedings ever since they were initiated. 3.1 It is stated that the averment of the applicant that the applicant is having pre-existing leasehold rights over the subject property is factually incorrect. It is stated that the borrowers/guarantors have deposited the original title deeds on 7.12.2010 with an intention to create equitable mortgage and further executed MoD on 25.3.2013, hence, the lease entered by the mortgagor in favour of the applicant is invalid. 3.2 Ld. Counsel also denied that the cause of action for filing the SA arose only pursuant to the letter dated 29.4.2019 and 13.5.2019 addressed to the Territorial Manager, BPCL. It is stated before passing the impugned order, the Collector, Kanchipuram District conducted an enquiry based on the report submitted by the revenue officials about the ground reality of the subject property and that the Collector has not sub-delegated his powers as envisaged under Section 14 of the SARFAESI At. 3.3 It is stated that the judgment relied upon by the applicant viz. Vishal N. Kalasaria Vs. Bank of India is prior to the amendment effected on 1.9.2016 in SARFAESI Act. It is further stated that the contention that once the property is sold in favor of auction purchaser, the secured creditor has lost interest or title over the secured property is untenable. In this context the 1st respondent relied on the decision in ITC Hotels Limited Vs. Blue Coast Hotels Limited and others. It is stated that the borrowers/guarantors have accepted the sale of the secured property in favour of the 6th respondent and the sale price received from the auction purchaser has been taken into consideration at the time of arriving at OTS proposal by the 1st respondent bank. It is stated that as on date the loan accounts were settled under OTS, hence, the applicant cannot question the sale held. 3.4 It is stated that pursuant to the letter dated 13.5.2019, BPCL has given a reply letter dated 27.5.2019 to postpone taking over of possession of the secured asset by 4 weeks, however, the applicant after enjoying the grace time, approached the Tribunal with untenable grounds. 3.5 It is stated that as the applicant cannot have any valid leasehold right over the secured asset, as the lease has been entered subsequent to creation of EM, consequently cannot sustain the present application before the Tribunal. It is stated that the applicant claims that he is in possession of the property measuring an extent of 8200 sq.ft. however, the as per the MOD the guarantors have mortgaged land and building measuring an extent of 1.012 acres in favour of the 1st respondent bank 3.6 It is stated that prior to execution of lease deed, the applicant ought to have verified that whether the property is free from encumbrance. Admittedly, the MoD was in existence on the date of execution of lease deed in favour of the applicant bank. Thus contending, Ld. Counsel for the 1st respondent bank prayed the Tribunal to dismiss the SA with exemplary costs. 3.7 Ld. Counsel for the first respondent filed the following documents and rulings in support of his case.a) MoD registered in favour of the respondent bank dated 18.3.2013b) Order passed by District Magistrate and District Collector, Kanchipuram dated 10.4.2018c) Letter sent by Collector, Kanchipuram District to the Asst. Commissioner, Neelankari dated 4.1.2019d) Letter sent by BPCL dated 27.5.2019e) Letter sent by Joint Chief Controller of Explosives, South Circle, Chennai dated 11.6.2019f) Application filed under Section 14 of the SARFAESI Act before District Collector, Kancheepuram District. 3.8 Ld. Counsel for the first respondent bank relied upon the following rulings in support of his case.a) Bajarang Shyamsundr Agarwal Vs. Central Bank of India and others reported in CDJ 2019 SC page 106 equivalent to CTC 2020 Volume 1 page 224.4. Respondents 4 and 5 did not choose to file any counter, however, in their written submissions have stated that the schedule mentioned property was already sold in favor of 6th respondent by the 1st respondents and the respondents 4 and 5 do not want to comment or state anything about the grounds raised by the applicant. It is stated that respondents 4 and 5 have no objection in case the Tribunal decides the case on merits and directs the applicant to vacate and hand over the schedule mentioned property. Thus contending, Ld. Counsel for respondents 4 and 5 prayed the Tribunal to decide the case on merits and pass appropriate orders.5. The 6th respondent, who is the auction purchaser filed a Memo adopting the written submissions of the 1st respondent bank and prayed the Tribunal to render justice.6. In the light of the aforesaid contentions, the Tribunal framed the following points for consideration:(i) Whether the Securitization Application is barred by limitation?(ii) Whether the measure impugned in this application is not in conformity with law, the provisions of the SARFAESI Act and the Rules made thereunder? If so, can the same be set aside? Heard the Ld. Counsel for both sides, perused the record and the case law.7. At the outset, it is to be stated that even though the SERFEASI Act, has given a free hand to the secured creditor to enforce the security interest if any created in favor of the creditor without the intervention of the Court or Tribunal, it is imperative for the secured creditor, while enforcing the security interest to invariably comply the provisions of the SARFAESI Act and the Rules made thereunder, lest, when challenged, the Tribunal can intervene and may even set aside the measure if noncompliance of the provisions of the Act or rules made thereunder is established.8. Honble Supreme Court of India, in re Mathew Vargheese Vs. M. Amirtha Kumar and others 2014 (5) SCC P-610(paragraph 24) held : that a free hand is given to the SECURED CREDITOR for the purpose of enforcing any security interest created in favour of SECURED CREDITOR, without the intervention of the Court or Tribunal. The only other relevant aspect contained in the said sub- section is that such enforcement should be in accordance with the provisions of this Act. A reading of Section 13(1), therefore, is clear to the effect that while on the one hand any SECURED CREDITOR may be entitled to enforce the SECURED ASSET created in its favour on its own without resorting to any court proceedings or approaching the Tribunal, such enforcement should be in conformity with the other provisions of the SARFAESI Act9. Insofar as the case on hand is concerned, since the subject matter of challenge being the measure of obtaining the actual possession of the secured asset by the 1st respondent in pursuance of the order dated 10/04/2018 passed by the 2nd respondent in a petition filed under section 14 of the SAFEASI Act, by the 1st respondent, it is for the 1st respondent to establish that said measure is in accordance with law and in conformity with the relevant provisions of SERFEASI Act, & Security Interest (Enforcement) Rules, 2002.10. Before I proceed to discuss the points framed as above, I feel it useful to state herein certain non-controversial facts/aspects of the subject dispute which are as follows: On 18.03.2013 an MOD in respect of an Agricultural vacant land measuring 1.012 Acres has been executed by the respondents 4 and 5 in favour of the 1st respondent by deposit of title deeds and the same was duly registered 18.03.2013 as Document No.2129/2013. The said MOD does not contain any clause restricting the Mortgagors from entering into any lease or from creating any leasehold rights in favour of the third parties in the mortgaged property. On 15.10.2013 a lease for a period of 16 years in respect of vacant land measuring 8200 sq. Feet (being part of the property covered by the above stated registered mortgage dated 18.03.3013 ) has been entered by the respondents 4 and 5 with the applicant and the same was duly registered on 15.10.2013 as Document No.7061/2013. On 10.6.2014, the competent authority approved construction of a building in the above stated lease hold property. On 17.12.2016, an auction sale notice for sale of secured assets including the above leasehold property was issued by the first respondent. On 28.6.2017, another sale notice for sale of the secured asset and other secured assets by way of public auction scheduled on 26.7.2017 was issued by the first respondent bank. On 29.8.2017, applicant filed OS No.415/2017 on the file of the Principal District Munsif, Alandur against the first respondent bank and others. On 29.8.2017, the applicant filed IA No.898/2017 in OS No.415/2017 seeking interim injunction against the respondents therein. On 14.9.2017, the first respondent bank filed IA 1151/2017 in OS No.415/2017 to reject the plain in OS 415/2017. On 10.4.2018, District Collector passed an order in Section 14 application filed by the first respondent. On 28.4.2018, a Common Order dismissing in IA 989/2017 and IA 1159/2017 in OS 415/2017 was passed by the Ld. District Munsif, Alandur. On 29.4.2018, the secured creditor bank sent a letter to the Territory Manager, BPCL. On 20.7.2018, CRP No.2128/2018 was filed by the applicant before the Honble High Court of Madras against the order in IA 898/2017. On 13.8.2018, Honble High Court passed an interim order. On 4.1.2019, the first respondent bank sent a communication to the ACP, Neelangarai. On 13.5.2019, a letter was sent by first respondent to BPCL. On 17.5.2019, a representation was sent by the applicant to the first respondent. On 20.5.2019 a representation was sent by applicant to the first respondent. On 4.6.2019, WP No.12639/2019 was filed by the applicant before the Honble High Court of Madras and was later withdrawn. 04.07.2019 the present SA has been filed. Now, I shall proceed to discuss the points framed, supra,11. Point No.1 Whether the Securitisation Application is barred by limitation? 11.1 At the outset, it is to be stated that it is for the applicant to establish that the present application as filed, is within the period of limitation, prescribed under Section 17(1) of the SARFAESI Act. Ld. Counsel for the Applicant, while refuting the contention of the 1st respondent that the present Securitization Application is barred by limitation submitted that the copy of the order dated 10.04.2018 passed by the 2nd respondent was received by the applicant only on 28.05.2019 and the present application having been filed on 04.07.2019 is well within the 45 days period of time prescribed for filing an application under section 17(1) of SARFAESI Act, as such the application is not barred by imitation. 11.2 Ld. Counsel further contended that until 17.05 2019 the applicant was unaware of the petition filed under section 14 of SARFEASI Act, by the 1st respondent before the 2nd respondent besides the order of eviction dated 10.04.2018 passed by the 2nd respondent or the steps that were taken pursuant to the said order by the respondents 1, 2 and 3 . According to the Ld. Counsel, the 1st respondent did not mark the copies of the letters dated 29.04.2018, 4.01.2019. 13.05.2019 addressed to BPCL to the applicant, hence the applicant has no knowledge of the said letters. 11.3 Strongly refuting the above submission, Ld. Counsel for the first respondent contended that, the present challenge pertains to the order dated 10.04.2018 passed by the 2nd respondent on a petition filed under Section 14 of SARFAESI Act, by the Authorized Officer of the respondent bank in which the applicant is one of the respondents, the challenge if any to the same shall be made within 45 days of the date of the order. Ld. Counsel further submitted that whereunder the 2nd respondent/DM, allowed the 1st respondent to take possession of the application schedule property from the applicant with the assistance of 3rd respondent and local Police and pursuant there to on 13.05.2019, when the 1st respondent sought to take actual possession of the secured asset through the 3rd respondent , the applicant vide letter dated 27.05.2019 sought 4 weeks time to vacate but after enjoying the grace period without vacating the property approached this Tribunal and obtained an order of status quo. Ld. Counsel further submitted that only with an intention to save limitation the applicant applied for certified copy of the order 10.04.2018 even through the applicant being the 14th respondent in the petition filed under Section 14 of the SARFAESI Act before the 2nd respondent was fully aware of the order date10.04.2018 on the date when the order was pronounced besides all the proceedings held before the 2nd respondent. Therefore, the challenge if any to the order of the 2rd respondent, since not made within 45 days from 10.04.2018 (the date of the order) and the present application having been filed on 04.07.2019 is hopelessly barred by limitation. 11.4 Having heard the Ld. Counsel for both sides carefully and tested their respective contentions on the touch stone of the following rulings,(i). Standard Chartered bank V Nobel Kumar (2013) 9 SCC 620.(ii). Roshan Narayanan. C.S vs The Authorized Officer, 2017(2) DRTC page 534. I am unable to accept the contention of the Ld. Counsel for the 1st respondent that, as the present application has been filed beyond 45 days from 10.04.2018, (the date of order passed by the 2rd respondent), the application is barred by time. I hereby state the reasons for my conclusion as aforesaid. 11.5 A mere perusal of Section 17 (1) of the SARFAESI Act, discloses that any person (including a borrower) if, aggrieved by any of the measures initiated by the secured creditor/Authorized Officer under Section 13(4)(a) of the SARFAESI Act, can file an appeal against such measure, before the Tribunal, within 45 days from the time when the measure is taken. 11.6 It is pertinent to note herein that in terms of sub clause 3 of Section 14 of SARFEASI Act, the order passed by the DM/CMM/CJM under section 14 of the is not amenable for a challenge before any court or authority. Section 14 of the Act, is extracted herein; Section14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. (1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets is r quired to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub- section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority. 11.7 However, in view of the ruling in re, Standard Chartered Bank, supra wherein Honble Supreme Court stated as follows: The appeal under section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the secured creditor). Therefore, the borrower is always entitled to prefer an appeal under section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4) (a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available. an application under section 17(1) of the Act, is entertained. 11.8 That apart, it is to be noted that this Tribunal is not designated as the Appellate Authority for the purpose of challenging the orders passed under section 14 of the SARFEASI Act. 11.9 In re, Roshan Narayanan. C.S, supra, a Division Bench of Hoble High Court of Kerala held that The recourse to the Magistrate under Section 14 is thus, only a "step" in the "measure" taken by the secured creditor for obtaining physical possession of the secured asset. Section 17 of the Act renders the measures taken by a secured creditor under Section 13 (4), including one under Section 13 (4)(a) of the Act, actionable at the instance of any person (including the borrower). Here, the reference to a "measure" must be taken as including a reference to any step in the effectuation of that measure, commencing with the issuance of any notice under Rule 8(2), and including the stages of approaching the Magistrate, obtaining an order from him, issuance of a notice by the Advocate Commissioner, and culminating with the taking of actual physical possession of the secured asset. Each of the above steps, in the measure adopted, would, in my opinion, give rise to a cause of action to approach the DRT through an application under Section17 of the Act.(emphasis supplied). 11.10 Therefore, taking recourse to the Magistrate under Section 14 by the authorized officer, being one of the "steps" in effectuating the "measure" of obtaining possession of the secured asset from the borrower, each of the steps, such as issuance of a notice by the authorized officer/ Advocate Commissioner/Tahsildar etc., and the said acts culminating in taking of actual possession of the secured asset by the above stated persons, would give rise to a cause of action to approach this Tribunal, through an application under Section 17 (1) of the Act, by any person who is aggrieved by such steps/measure. 11.11 In so far as the case on hand is concerned theapplicant vehemently contended that until 17.05 2019 the applicant was unaware of the order of eviction dated 10.04.2018 passed by the 2nd respondent or the steps that were taken pursuant to the said order by the respondents 1, 2 and 3. Admittedly, the 1st respondent did not mark the copies of the letters dated 29.04.2018, 4.01.2019. 13.05.2019 addressed to BPCL to the applicant, hence it is not proper to attribute knowledge of the said letters to the applicant. Though the 1st respondent contended that on 13.05.2019 when the 1st respondent sought to take actual possession of the secured asset through the 3rd respondent , that the applicant vide letter dated 27.05.2019 sought 4 weeks time to vacate, however after enjoying the grace period approached this Tribunal and obtained an order of status quo, no record in support of the said plea has been filed. 11.12 Be that as it may, in the considered view of the Tribunal, mere knowledge/information as to the passing of the order dated by the DM/CM/CJM or some communication between the Authorised Officer and third party, by itself does not give rise to any cause of action for filing an application under section17(1) of the SARFEASI Act, by the person aggrieved by the order passed by the DM/CMM/CJM, as according to section 17(1) an application under the said section would lie only when any of the measures under section 13(4) of the SARFEASI Act, is taken but not when merely known to the borrower or the person aggrieved. 11.13 When it is the case of the applicant that he has no knowledge of the measure initiated by the 1st respondent before the 2nd respondent under section 14 of the SARFEASI Act and that he was not served with notice of the said petition despite being shown as 14th respondent. Here it is pertinent to state that even though under law it is not necessary/mandatory for the 1st respondent to serve notice on the respondents in a petition filed under section14 of the SARFEASI Act by the authorised officer, since the 1st respondent contends that the applicant being the 14th respondent in the said petition and has been fully aware of the proceedings as well as the order passed in the said petition, it is for the 1st respondent to establish service of notice on the applicant. However, the 1st respondent did not place any record to show that the applicant has been served with notice in section 14 petition. That apart, the order dated 10.04.2018 also does not disclose the service of notice on the applicant, participation/non participation of the applicant in the said proceedings. Neither the 1st respondent nor the respondents 2 and 3 have filed any record of communication of the copy of the order dated 10.04.2018 on the applicant. Therefore, under these circumstances the Tribunal finds no reason to disbelieve the version of the applicant that he was not aware of the petition filed under Section 14 of the Act, before the 2nd respondent, the proceedings thereon and immediately upon coming to know that the 2nd respondent passed the order dated 10.04.2018, he made an application for copy of the order and the same was furnished to him on 28.05.2019. 11.14 Therefore, in so far as the case on hand is concerned, even assuming that the application under Section 17(1) should be filed within 45 days from the date of the order passed by DM/CMM/CJM, when there is no proof of communication of the copy of the order of the 2nd respondent dated 10.04.2018 to the applicant by the 1st, 2nd or the 3rd respondents until 28.05.2019, one cannot expect the applicant who is aggrieved by the said order to challenge the same, within 45 days from 10.4.2018. Here it is pertinent to state that the Tribunal shall invariably function under the bed rock of the principles of natural justice. 11.15 That apart, it is also relevant to state herein that in terms of rule 8(6) (a) (f) of Security Interest Enforcement Rules, it is imperative for the 1st respondent when an immovable secured asset is brought to sale by a public auction to disclose to the public; (a) The description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (f) Any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. 11.16 Admittedly, a notice of sale dated 17.12.2016 has been issued much before filing of the petition under Section 14 of the Act and another sale notice dated 28.6.2017 were issued by the 1st respondent for sale of the subject property. It is trite to say that it is mandatory under law that the Authorised Officer shall obtain a valuation report from the approved valuer before issuance of a notice of sale by public auction and the said report shall invariably disclose whether or not the subject property is covered by any lease or not since admittedly the applicant/third party is in possession of the same. 11.17 So much so the lease dated 15.03.2013 between the applicant and the 4th respondent which was admittedly registered much before the issuance of the demand notice dated 21.09.2016 must find a mention in the sale notices dated 17.12.2016 and 28.6.2017. But strangely, as can be seen from the copies of the sale notices filed by the applicant the same do not contain any mention at all about the registered lease supra. On the contrary it was stated therein as follows: to the best of knowledge and information of the Authorised Officer, there is no encumbrance on the properties. However, the intending bidders should make their own independent inquiries regarding the encumbrances, title of properties put on auction and claims/rights/dues/affecting the property, prior to submitting their bid. The e-auction advertisement does not constitute and will not be deemed to constitute any commitment or any representation of the bank. The property is being sold with all the existing and future encumbrances whether known or unknown to the bank. The Authorised Officer/Secured Creditor shall not be responsible in any way for any their party claims/rights/dues 11.18 Thus, it is not fair on the part of the 1st respondent in ignoring the rights of a lessee when the lease which was duly registered does not offend either section 13(13) of the SERFEASI Act or Section 65A of the Transfer of Property Act. Moreover, once a document like a Lease is duly registered, the said document will become a public document, as such the same will be in public domain as well. That apart, registration of a document also can be construed as giving the public notice of the said document, though not its contents. 11.19 Therefore, in the light of my discussion as above, in so far as the case on hand in concerned, the cause of action to challenge the measure of taking actual possession of the secured asset in pursuance of the order of the 2nd respondent dated 10.04.2018 accrued to the applicant on 28.05.2019 when the applicant has been furnished with the copy of the order dated 10.04.2018. So much so, present application having been filed on 04.07.2019, the same is well within the time prescribed for filing an application under Section 17(1) of the SARFAESI Act. Point No.1 is answered accordingly.12. Point No.2 Whether the measure impugned in this application is not in conformity with law, the provisions of the SARFAESI Act and the Rules made thereunder? If so, can the same be set aside? 12.1 According to the Ld. Counsel for the applicant the measure initiated for obtaining the physical possession of the subject property by the first respondent pursuant to the order obtained from the 2nd respondent/ District Magistrate, is contrary to law, the mandatory provisions of SARFAESI Act and the Rules made thereunder, as such the impugned measure is liable to be set aside. Ld. Counsel would further contend that the first respondent despite being fully aware of the registered lease dated 15.03.2013 executed by the 4th and the 5th respondents in favor of the applicant, intentionally suppressed the existence of the same all through, more particularly in the sale notices dated17.12.2016, 28.06.2017and also in the proceedings before the 2rd respondent/District Magistrate and obtained an order of eviction of the applicant from the subject property and thereafter made an high handed attempt to dispossess the applicant from the secured asset, pursuant to which the applicant approached the civil court by filling a civil suit against the 1st respondent and others in OS 415/2017. 12.2 Ld. Counsel, would further submit that since the subject lease is not terminated in terms of section 111 of Transfer of Property Act, the lease between the applicant and the respondents 4&5 continues to subsist as such the impugned measure is not sustainable under law especially under the provisions of the SARFEASI Act. Thus, submitting Ld. Counsel prayed the Tribunal to set aside the impugned measure. Ld. Counsel, in support of his submissions placed reliance on the following rulings.a) Vishal N.Kalsaria Vs. Bank of India and others reported in in 2016 (3) SCC 762.b) Park View Enterprises Vs. State Government of Tamil Nadu reported in MANU/TN/0100/198c) Harshad Govardhan Sondagar Vs. International Asset Reconstruction Company Limited & others reported in (2014) 6 SCC 1. 12.3 Per contra, the Ld. Counsel for the 1st respondent would contend that the plea of the applicant that the applicant is having a pre-existing leasehold right over the subject property is factually incorrect. It is stated that the borrowers/guarantors have deposited the original title deeds relating to subject property with the 1st respondent on 7.12.2010 with an intention to create equitable mortgage and further executed a registered MoD on 18.3.2013 in favour of the 1st respondent, as such the so called Lease claimed by the applicant is invalid and un enforceable under law. 12.4 It is further contended that before passing the impugned order, the Collector, Kanchipuram District conducted an enquiry based on the report submitted by the revenue officials about the ground reality of the subject property, as such the plea that the Collector has not sub-delegated his powers as envisaged under Section 14 of the SARFAESI Act, is incorrect. 12.5 Ld. Counsel also stated that the judgment relied upon by the applicant viz. Vishal N. Kalasaria Vs. Bank of India being prior to the amendment effected on 1.9.2016 to the SARFAESI Act, the same cannot be applied to the present case. According to the Ld. Counsel the plea that once the property is sold in favour of auction purchaser, the secured creditor has no longer any interest or title over the secured property is nothing but a vexatious statement made for the purpose of the case. Ld. Counsel also referred to the decision in ITC Hotels Limited Vs. Blue Coast Hotels Limited and others in this regard. 12.6 It is further stated that the borrowers/guarantors have confirmed the sale of the secured property held in favour of the 6th respondent, auction purchaser and the sale price received from the auction purchaser has been taken into consideration at the time of arriving at OTS by the 1st respondent bank. It is stated that as on date the loan accounts of the borrowers were settled under OTS, hence, the applicant cannot question the sale already held. It is stated that prior to execution of lease deed, the applicant ought to have verified that whether the property is free from encumbrance. Thus, submitting Ld. Counsel prayed to dismiss the application. 12.7 Ld. Counsel in support of his submissions placed reliance on the following ruling. Bajarang Shyamsundr Agarwal Vs. Central Bank of India and others reported in CDJ 2019 SC page 106 equivalent to CTC 2020 Volume 1 page 224. 12.8 Before I proceed with my discussion, I feel it necessary to refer to the following provisions contained in the Transfer of Property Act as well as SARFAESI Act, for effective and proper appreciation of the subject controversy, Section 65A of Transfer of property Act. Mortgagors power to lease. (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 sub-section (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.] Section 105 in The Transfer of Property Act.105. Lease defined.A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. Section 107 of Transfer of Property Act Leases how made. A lease of immoveable 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. 2[All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. 3[Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government may 4[***] from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. Section 111 in The Transfer of Property Act, 1882 Determination of lease. A lease of immoveable property determines (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some eventby the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any eventby the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1[* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in 3[any of these cases] the lessor or his transferee 4[gives notice in writing to the lessee of] his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Illustration to clause (f) A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.13. Enforcement of security interest. (1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882 ), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as on- performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled toexercise all or any of the rights under sub- section (4). (3) The notice referred to in sub- section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non- payment of secured debts by the borrower. (4) In case the borrower fails to discharge his liability in full within the period specified in sub- section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; (b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset; (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) Any payment made by any person referred to in clause (d) of sub- section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower. (6) Any transfer of secured asset after taking possession thereof or take over of management under sub- section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. (7) Where any action has been taken against a borrower under the provisions of sub- section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in ischarge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests. (8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the s cured creditor, and no further step shall be taken by him for transfer or sale of that secure asset. (9) In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursua t to sub- section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three- fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors: Provided that in the case of a company in liquidation, the amount realised from the sale of secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956 ): Provided further that in the case of a company being wound up on or after the commencement of this Act, the secured creditor of such company, who opts to realise his security instead of relinquishing his security and proving his debt under proviso to su- section (1) of section 529 of the Companies Act, 1956 (1 of 1956 ), may retain the sale proceeds of his secured assets after depositing the workmen' s dues with the liquidator in accordance with the provisions of section 529A of that Act: Provided also that liquidator referred to in the second proviso shall intimate the secured creditor the workmen' s dues in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956) and in case such workmen' s dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen' s dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimate dues with the liquidator: Provided also that in case the secured creditor deposits the estimated amount of workmen' s dues, such creditor shall be liable to pay the balance of the workmen' s dues or entitled to receive the excess amount, if any, deposited by the secured creditor w th the liquidator: Provided also that the secured creditor shall furnish an undertaking to the liquidator to pay the balance of the workmen' s dues, if any. Explanation.- For the purposes of this sub- section,- (a) " record date" means the date agreed upon by the secured creditors representing not less than three- fourth in value of the amount outstanding on such date; (b) " amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor. (10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower. (11) Without prejudice to the rights conferred on the secured creditor under or by this section, secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measured specifies in clause (a) to (d) of sub- section (4) in relation to the secured assets under this Act. (12) The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed. (13) No borrower shall, after receipt of notice referred to in sub- section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor. Section 17(4-A) of the SARFAESI Act. "[(4-A) Where-(i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured assets, 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 65-A 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 6 of 8 accordance with the provisions of this Act.]" 12.9 I shall first discuss the legal perspective of the subject controversy before resorting to discussion on the factual matrix of this case. 12.10 It is not in dispute that the subject lease has been duly registered on 15 10.2013 and that the demand notice in terms of section 13(2) of the SERFEASI Act, dated 21.09.2016 has been issued to the borrowers during the subsistence of the registered lease agreement between the applicant and the borrowers, viz., the 4th and 5th respondents. Further, nowhere in the counter, the 1st respondent had pleaded that the 1st respondent was unaware of the registered Lease Deed dated 15.10.2013 between the applicant and the respondents 4 and 5. On the other hand, the 1st respondent vehemently argued on the validity of the said lease, on the premise that the lease having been entered after creation of MoD by the lessee is not valid under law. Sub Section 13 of Section 13 of SARFEASI Act states as below No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor. Section 65A of Transfer of Property Act, stipulates that, 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 sub-section (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.] 12.11 In the light of the afore said provisions of law, I have carefully examined the subject registered lease and the only irresistible conclusion I could arrive at is, that the subject lease does not offend any of the afore stated sections of law, as admittedly the lease was registered much prior to the date of issuance of the demand notice dated 21.9.2016 under section 13(2) of the SARFEASI Act, by the secured creditor to the borrowers and the leasehold property is indisputably a vacant agricultural land at the time of execution of the registered lease. That apart, even according to the registered MoD dated 18.3.2013, the property was a vacant agricultural land. 12.12 The above being the indisputable legal matrix of this case, it would be appropriate to refer herein to the ruling of Honble Supreme Court of India, in re, Harshad Govardhan Sondagar Vs. International Asset Reconstruction Company Limited & others reported in (2014) 6 SCC 1, wherein it was held as under: 34In our view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore (supra) and has lost sight of the opening words of sub-section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or Section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub-Section (2) of Section13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is set aside. 12.13 Therefore, it is as clear as crystal from the afore said ruling besides in terms of section 13(13) of SARFEASI Act and section 65A of T P Act, that the rights of a lessee under a lease created before receipt of a notice under sub- Section (2) of Section 13 of the SARFAESI Act, by a borrower remain in tact until terminated, as per law.. As such the applicant / lessee herein, shall be entitled to enjoy the protection of law until his lease is determined in accordance with section 111 of Transfer of Property Act, supra. 12.14. The above view of mine is also fortified by the ruling of Honble Supreme Court of India, in re, Harshad Govardhan, supra, wherein it was held that, Section 105 thus provides that a lessee of an immovable property has a right to enjoy such property, for a certain time or in perpetuity when a lessor leases an immovable property transferring his right to enjoy such property for a certain time or in perpetuity. Section 111 of the Transfer of Property Act, 1882 provides the different modes by which a lease gets determined. Thus, so long as a lease of an immovable property does not get determined, the lessee has a right to enjoy the property and this right is a right to property and this right cannot be taken away without the authority of law as provided in Article 300A of the Constitution.. 12.15. However, Ld. Counsel for the 1st respondent would contend that in view of the subsequent amendment made under Act 44/2016 (with effect from 1.9.2016 ) to Section 17 of the SARFAESI Act, which is as follows, [(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; 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.] the ruling in Harshad Govardhan, supra, and in Vishal N Kalsaria Vs. Bank of India and others reported in AIR (2016) SC 530, since rendered prior to the afore stated amendment to section 17 of the Act, cannot be applied/followed in the case on hand. 12.16. Having carefully examined the said contention of the Ld. Counsel for the 1st respondent, on the backdrop of the factual matrix of this case and the legal frame, I am unable to accept the said submission of the Ld. Counsel, for the reasons given below. 12.17 The very amendment made to Section 17, under Act 44/2016, supra, states that 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, after examining whether the (a) Lease of tenancy has expired or terminated (b) Contrary to Section 65 of Transfer of Property Act (c) Contrary to the terms of Mortgage. 12.18 The examination as afore stated, is possible by taking recourse to Sections 111 and 65A of Transfer of Property Act, as Section 111 of the Transfer of Property Act, supra, prescribes the procedure for determination of a lease whereas section 65A of the TP Act, states the conditions under which the mortgagor can lease out the mortgaged property and when such lease binds the mortgagee. 12.19 Therefore, when it is clear that only on examination of the terms of Lease or Tenancy, in the light of the afore stated sections of transfer of property law the Tribunal can come to the conclusion whether or not a valid lease or tenancy exist and ifso, whether the lease has been determined in accordance with the Section 111 of the Transfer of Property Act or not, the Tribunal is unable to find anything contrary between the provisions of the SARFAESI Act and the Transfer of Property Act. 12.20. That apart, Honble Supreme Court of India, in re Bajrang Shyamsunder Agarwal Vs. Central Bank of India and another reported in (2019) 9 SCC 94, relied upon also by the Ld. Counsel for the 1st respondent, it was held as follows; While we agree with the principle laid out in Vishal N. Kalsaria Case (supra) that the tenancy rights under the Rent Act need to be respected in appropriate cases, however, we believe that the holding with respect to the restricted application of the non obstante Clause Under Section 35 of SARFAESI Act, to only apply to the laws operating in the same field is too narrow and such a proposition does not follow from the ruling of this Court in Harshad Govardhan Case (supra) 12.21. I therefore, find no force at all in the contention of the Ld. Counsel for the 1st respondent that the ruling, in re, Harshad Govardhan and Vikas Kalsaria, supra, are not to be followed in the case on hand, on the plea of inconsistency or that Section17(4) has been subsequently amended. 12.22 Now coming to the factual matrix of the case, indisputably the secured creditor herein, set the SERFEASI Act, in motion against the borrowers while the registered lease, supra, is in force. The first respondent either before or after issuance of the demand notice, did not demand the 4th and 5th respondents / borrowers/ mortgagors/ landlords to take appropriate steps for termination of the lease in favour of the applicant. In my considered view recourse to such a step would have obviated the legal hurdles discussed supra, as mere issuance of the demand notice in terms of Section 13(2) of the SARFEASI Act, will not put the tenancy between the borrower and the lessee to an end as per the ruling in Harshad Govardhan, supra, wherein it was held that, As we have noticed, there is no provision in Section 13 of the SARFAESI Act that a lease in respect of a secured asset shall stand determined when the secured creditor decides to take the measures mentioned in Section 13 of the said Act. Without the determination of a valid lease, the possession of the lessee is lawful and such lawful possession of a lessee has to be protected by all courts and tribunals. 12.23 As already stated the 1st respondent cannot plead innocence of the registered lease dated 15.10.2013 even after issuance of two sale notice dated 17.12.2016 and 28.06.2017 for the reasons I have already discussed by me supra. 12.24 Now I shall proceed to decide whether or not the impugned measure is liable to be set aside, inter alia, on the grounds pleaded by the applicant that;(i) Since the tenancy between the applicant and the respondents 4&5 is not determined as per law, neither the 1st respondent can seek eviction of the applicant from the leasehold property nor the 2nd respondent has jurisdiction to pass an order of eviction of the applicant.(ii) Existence of a valid tenancy between the applicant and the respondents 3 and 4 has been intentionally suppressed by the 1st respondent before the 2nd respondent in the petition filed under Section 14 of the Act and also before the 3rd respondent/Tahsildar while attempting to take actual possession of the secured asset from the applicant on the strength of the order dated 10.04.2018 passed by the 2nd respondent;(iii). That despite the direction in the order passed by the 2nd respondent that the 3rd respondent to take possession of the property after due verification of genuineness of land records and to verify whether any tenancy occupation is prevalent there with proper agreements in which case after following the due process of law to proceed to take possession of the property , neither the 3rd respondent made any enquiry with the applicant nor the 1st respondent disclosed the existence of the afore stated registered lease between the applicant and the respondents 4 and 5 before the 3rd respondent. 12.25 It is to be noted that as per Section 107 of Transfer of Property, a lease of immoveable 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. 12.26 Here, the Tribunal is of the view that it would be apt to refer to the ruling in Vishal N Kalsaria Vs. Bank of India and others reported in AIR (2016) SC 530, wherein it referring to section 107 of T P Act, Honble Supreme Court has held that, What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, de hors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus: All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. According to Section 106 of the Transfer of Property Act, 1882, a monthly tenancy shall be deemed to be a tenancy from month to month and must be registered if it is reduced into writing. The Transfer of Property Act, however, remains silent on the position of law in cases where the agreement is not reduced into writing. If the two parties are executing their rights and liabilities in the nature of a landlord-tenant relationship and if regular rent is being paid and accepted, then the mere factum of non-registration of deed will not make the lease itself nugatory., the learned counsel for the appellants rightly placed reliance on a three Judge Bench decision of this Court in Anthony (supra). At the cost of repetition, in that case it was held as under: But the above finding does not exhaust the scope of the issue whether the appellant was a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. In the same ruling it was also held that, If the two parties are executing their rights and liabilities in the nature of a landlord-tenant relationship and if regular rent is being paid and accepted, then the mere factum of non- registration of 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. Further, in terms of Section 55(2) of the special law in the instant case, which is the Rent Control Act, the onus to get such a deed registered is on the landlord. In light of the same, neither the landlord nor the banks can be permitted to exploit the fact of non-registration of the tenancy deed against the tenant. 12.27 Having so said, in my endeavor to decide whether or not the impugned measure initiated by the 1st respondent is in accordance with law and the provisions of SARFAESI Act & Rules made thereunder, I shall once again refer to the ruling in Harshad Govardhan, supra, wherein it was held that, The opening words of Sub-section (1) of Section 14 of the SARFAESI Act also provides that if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of the Act, the secured creditor may take the assistance of the Chief Metropolitan Magistrate or the District Magistrate. Where, therefore, such a request is made by the secured creditor and the Chief Metropolitan Magistrate or the District Magistrate finds that the secured asset is in possession of a lessee but the lease under which the lessee claims to be in possession of the secured asset stands determined in accordance with Section 111 of the Transfer of Property Act, the Chief Metropolitan Magistrate or the District Magistrate may pass an order for delivery of possession of secured asset in favour of the secured creditor to enable the secured creditor to sell and transfer the same under the provisions of the SARFAESI Act. Sub-section (6) of Section 13 of the SARFAESI Act provides that any transfer of secured asset after taking possession of secured asset by the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. In other words, the transferee of a secured asset will not acquire any right in a secured asset under Sub-section (6) of Section 13 of the SARFAESI Act, unless it has been effected after the secured creditor has taken over possession of the secured asset. Thus, for the purpose of transferring the secured asset and for realizing the secured debt, the secured creditor will require the assistance of the Chief Metropolitan Magistrate or the District Magistrate for taking possession of a secured asset from the lessee where the lease stands determined by any of the modes mentioned in Section 111 of the Transfer of Property Act.21. When, therefore, a lessee becomes aware of the possession being taken by the secured creditor, in respect of the secured asset in respect of which he is the lessee, from the possession notice which is delivered, affixed or published in Sub-rule (1) and Sub-rule (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, he may either surrender possession or resist the attempt of the secured creditor to take the possession of the secured asset by producing before the authorised officer proof that he was inducted as a lessee prior to the creation of the mortgage or that he was a lessee under the mortgagor in accordance with the provisions of Section 65A of the Transfer of Property Act and that the lease does not stand determined in accordance with Section 111 of the Transfer of Property Act. If the lessee surrenders possession, the lease even if valid gets determined in accordance with clause (f) of Section 111 of the Transfer of Property Act, but if he resists the attempt of the secured creditor to take possession, the authorised officer cannot evict the lessee by force but has to file an application before the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act and state in the affidavit accompanying the application, the name and address of the person claiming to be the lessee. When such an application is filed, the Chief Metropolitan Magistrate or the District Magistrate will have to give a notice and give an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor, consistent with the principles of natural justice, and then take a decision. If the Chief Metropolitan Magistrate or District Magistrate is satisfied that there is a valid lease created before the mortgage or there is a valid lease created after the mortgage in accordance with the requirements of Section 65A of the Transfer of Property Act and that the lease has not been determined in accordance with the provisions of Section 111 of the Transfer of Property Act, he cannot pass an order for delivering possession of the secured asset to the secured creditor. But in case he comes to the conclusion that there is in fact no valid lease made either before creation of the mortgage or after creation of the mortgage satisfying the requirements of Section 65A of the Transfer of Property Act or that even though there was a valid lease, the lease stands determined in accordance with Section 111 of the Transfer of Property Act, he can pass an order for delivering possession of the secured asset to the secured creditor. 12.28 A perusal of the record placed by the 1st respondent before the 2nd respondent discloses that the 1st respondent failed to disclose the existence registered lease between the applicant and the respondents 4 and 5 in its petition filed on 16.03.2017. It is pertinent to state herein, that the 1st respondent is the defendant in OS415/2017 filed on 29.08.2017 by the applicant before Principal District Munsif, Alandur, where in the registered lease dated 15.10.2013 has admittedly been filed by the applicant. Therefore, it is overwhelmingly clear that the 1st respondent was fully aware the existence registered lease dated 15.10.2013 between the applicant and the respondents4 and 5 at least during the pendency of the proceedings in the petition under Section 14 of the Act. The 1st respondent was under a legal obligation to obtain a valuation report when the 1st respondent issued the sale notices dated 17.12.2016 and 28.6.2017 for sale of the secured asset. The valuation report shall invariably disclose, the nature of occupation of the applicant, whether there existed any tenancy if so, between whom? whether the same is registered or not? since the applicant who is a third party is in possession of the secured asset. So much, it can be safely concluded that even before filing the petition under Section 14 of the SARFAESI Act (i.e. 6.3.2017) the 1st respondent is fully aware of the Registered lease dated 15.10.2013. However, the 1st respondent did not choose to bring the same to the notice of the 2nd respondent. On the contrary, in the petition filed before the 2nd respondent it has stated as follows: 23.The petitioner submits that the respondents 12 to 14 were occupied in the schedule premises as per Harshad Govardhan Sondagar case the respondents 12 to 14 were impleaded as parties to this case. The petitioner submits that the Harshad Govardhan Sodagar Vs. IARC and others, the S.C. had clearly mentioned that if the Tenant does not produce proof of execution of registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanies 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 asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord. In the above said premises, the respondents 12 to 14 are residing without any legal tenanc

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y agreement or lease agreement. Moreover, they had occupied the premises subsequent to mortgage. Hence, the bank is not bound to send any notice to them. An order may be passed against those tenants. 12.29 Even after thus saying so in the sale notices supra, it is not the case of the 1st respondent that it had asked the applicant to produce proof of creation of registered lease in its favor and the applicant failed to produce the same. Moreover, it is nobodys case that the registered lease between applicant and the respondents 3 and 4 stood determined in accordance with Section 111 of Transfer of Property Act. There is no dispute that the applicant is in possession and enjoyment of the secured asset as on the date of filing the application. 12.30 That apart, the 1st respondent vide letter dated 13.05 2019 while requesting BPCL not to renew the license to run the Gas agency by the applicant in the secured asset, claimed that the applicant is an unauthorized tenant in the secured asset. The acts of concealment of existence of a valid lease hold in favour of the applicant on the part of the 1st respondent continued even after the 2nd respondent ordered that the 3rd Respondent / Tahsildar, shall verify with borrower in the field, whether any DRT orders / any other court orders are in force after issuance of Section 13(2) & 13(4) notice and any tenancy occupation is prevalent there with proper agreements in which case after following the due process of law proceed to take possession of the said property, as the record placed before the Tribunal, does not reveal any statement having been made by the 1st respondent before the 3rd respondent regarding the existence of a registered lease dated 15.10.2013 between the applicant and the respondents 4 and 5. Thus, the concealment of material information well within the knowledge of the 1st respondent appears to be deliberate all through on the part of the 1st respondent. 12.31 Therefore, from my aforestated discussion, the conclusions that have emerged are, as follows:(i). The registered lease between the applicant and the respondents 4 and 5 in respect of vacant land measuring 8200 sq. Ft, has been duly executed much prior to the issuance of demand notice under Section 13(2) by the secured creditor, and the said lease does not offend either Section 13 (13) of SARFEASI Act or Section 65A of T P Act.(ii). The registered lease between the applicant and the 2nd respondent dated 15.10.2013 is binding on the respondents 4 and 5 as well as the 1st respondent mortgagee in terms of section 65A of TP Act.(iii). The tenancy between the applicant and the respondents 4 and 5 is not determined as per law.(iv). The first respondent is in full knowledge of the execution of the registered lease by the second respondent in favor of the applicant at least from the date when it allegedly issued the possession notice dated 22.11.2016 and it received summons in OS No.415/2017 filed on 29.08.2017 by the applicant before Sub Court, Allandur.(v) The 3rd respondent/Tahsildar failed to comply the direction of the 2nd respondent regarding verification of leasehold rights, if any, in favor of the occupant.(vi). The subject lease even though entered after creation of equitable mortgage by deposit of Title deeds by the mortgagor, the same is in accordance with Section 65A of the Transfer of Property Act , as such without determination of the said lease in accordance with the provisions of Section 111 of the Transfer of Property Act, the order dated 15.10.20 passed by the 2nd respondent for delivery of the possession of the secured asset to the secured creditor is not valid. 12.32 Now, I shall refer to the recent ruling Honble Supreme Court of India, in re Bajrang Shyamsunder Agarwal Vs. Central Bank of India and another reported in (2019) 9 SCC 94, relied upon by both sides, wherein, it was held as follows: While we agree with the principle laid out in Vishal N. Kalsaria Case (supra) that the tenancy rights under the Rent Act need to be respected in appropriate cases, however, we believe that the holding with respect to the restricted application of the non obstante Clause Under Section 35 of SARFAESI Act, to only apply to the laws operating in the same field is too narrow and such a proposition does not follow from the ruling of this Court in Harshad Govardhan Case (supra).25. In our view, the objective of SARFAESI Act, coupled with the T.P. Act and the Rent Act are required to be reconciled herein in the following manner:a) If a valid tenancy under law is in existence even prior to the creation of the mortgage, the tenant's possession cannot be disturbed by the secured creditor by taking possession of the property. The lease has to be determined in accordance with Section 111 of the TP Act for determination of leases. As the existence of a prior existing lease inevitably affects the risk undertaken by the bank while providing the loan, it is expected of Banks/Creditors to have conducted a standard due diligence in this regard. Where the bank has proceeded to accept such a property as mortgage, it will be presumed that it has consented to the risk that comes as a consequence of the existing tenancy. In such a situation, the rights of a rightful tenant cannot be compromised under the SARFAESI Act proceedings.b) If a tenancy under law comes into existence after the creation of a mortgage, but prior to the issuance of notice Under Section 13(2) of the SARFAESI Act, it has to satisfy the conditions of Section 65-A of the T.P. Act. (emphasis supplied)c) In any case, if any of the tenants claim that he is entitled to possession of a secured asset for a term of more than a year, it has to be supported by the execution of a registered instrument. In the absence of a registered instrument, if the tenant relies on an unregistered instrument or an oral agreement accompanied by delivery of possession, the tenant is not entitled to possession of the secured asset for more than the period prescribed Under Section 107 of the T.P. Act. The case of the applicant certainly falls under clause b, supra. 12.33 Therefore, having carefully examined the contentions put forth by both parties, on taking into consideration the record and the case law, this Tribunal is satisfied that it has been established that: (a) The registered lease dated 15.10.2013 between the applicant and the respondents 4 and 5 has not been determined in terms of Section 111 of Transfer of Property Act (b) the lease in question is not contrary to Section 13(3) of SARFAESI Act or Section 65A of Transfer of Property Act; (c) the lease in question is not contrary to the terms of the subject mortgage entered by the respondents 4 & 5 in favour of the 1st respondent. (d) the lease in question is not created after issuance of the demand notice dated 21.9.2016 by the bank under sub section 2 of section13 of the SARFEASI Act.13. Therefore, having thus satisfied that the tenancy rights or lease hold rights claimed by the applicant herein in the secured asset (application schedule mentioned property) do not offend sub-clauses (a), (b), (c) or (d) of clause (i), of sub clause 4-A of section 17 of the SARFEASI Act, the Tribunal hereby declares that the measure initiated by the 1st respondent to obtain the actual possession of the application schedule mentioned property measuring an extent of 8200 sq.ft from the applicant through the 3rd respondent, pursuant to the order of the 2nd respondent dated 10.04.2018, is not in conformity with law, the provisions of the SERFEASI Act and Rules made thereunder, hence the said measure is liable to be set aside. I therefore, hereby set aside the same. Point No.2 is answered accordingly.14. I hereby hold that the applicant being a third party is also entitled to costs.15. In the result, the SA is allowed with costs, declaring that the measure initiated by the 1st respondent to obtain the actual possession of the application schedule mentioned property of an extent of 8200 sq.ft from the applicant through the 3rd respondent pursuant to the order of the 2nd respondent dated 10.04.2018, is not in conformity with law, the provisions of the SARFAESI Act and the rules made thereunder, hence the same is liable to be set aside. Accordingly, the same is set aside.16. Since it is stated that the sale of the subject secured asset has already taken place in favor of the 6th respondent, the possession of the applicant in respect of the application schedule mentioned property measuring an extent of 8200 sq. Ft, shall not be disturbed by the respondents 1 and 6, until the tenancy rights of the applicant are determined in accordance to law.17. Communicate a copy of the order to the parties concerned in terms of Rule 16 read with Rule 2(c) of DRT (Procedure) Rules, 1993. (Dictated to PA(SN), transcribed by him, corrected, signed and pronounced by me in Virtual Court, held through Video Conference on this 15th day of June, 2020)
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