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2015 (10) TMI 2445 - BOMBAY HIGH COURTChallenging order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Petitioner contends that Respondent defaulted in payment of instalments of loan and same was classified as NPA - Notice issued under section 13(2) of SARFAESI Act but neither borrowers nor guarantors replied to same nor repaid the amount - Affidavit filed made a false statement that neither is there any third party in possession nor is there any lease created in respect of premises and further incorrect fact is that there was no suit or legal proceeding pending in respect of secured assets – Overriding effect of SARFAESI Act would not enable Respondent No. 4 Bank to obtain assistance of learned Chief Metropolitan Magistrate in taking possession of secured assets and even if rent is paid annually, this is not a lease covered by first part of Section 107 of Transfer of Property Act, 1882 and lease of more than one year which is unregistered, is void. Respondent contends that petition is not a bonafide proceeding, is a collusive action, inasmuch as deed of mortgage executed would indicate as to how registered mortgage was created and by same signatories and same parties dealing with Petitioners – Petitioners have been put up by them in order to defeat rights of Bank and particularly order and protection under Section 14 – After promulgation of Maharashtra Rent Control Act by virtue of Section 55, an agreement for tenancy is to be registered and compulsorily - No false statement on oath was made by Respondent No. 4 Bank as it may be dealing with Petitioners as a client constituent, but it does not mean that Bank is aware of status of Petitioners in respect of premise. Held That:- If lease is not valid, possession is not lawful, then, there is no justification for interference in extra ordinary, discretionary and equitable jurisdiction of Court and merely because person in possession claims to be a lessee does not mean that he should be protected - Section 107 clearly states that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument - It is undisputed that agreement which is relied upon is unregistered, but rent is claimed to be payable yearly, then, this Act would clearly fall within the mischief - Omission in given facts and circumstances was not fatal and claim of tenancy is prima facie doubtful - Action of Bank in the present case determines the tenancy - Tenancy was not known to Bank, a third party in the absence of registration of the instrument thus cannot be held guilty of suppression – Decided in favour of Respondent.
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