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2021 (8) TMI 1385 - SC - Indian LawsRestraint from taking possession of the property in the Appellant's possession - eviction from the Secured Asset without due process of law - protected tenant (of secured asset) under the provisions of the Maharashtra Rent Control Act 1999 - HELD THAT:- Procedural mechanism for taking possession of the Secured Asset is provided Under Section 14 of the SARFAESI Act. Section 17 of the SARFAESI Act provides for the right of appeal to any person including the borrower to approach Debt Recovery Tribunal (DRT). Section 17 has been amended by Act No. 44 of 2016 providing for challenging the measures to recover secured debts (for short, "the Amendment"). Under the Amendment, possession can be restored to the borrower or such other aggrieved person. This Amendment has come into force w.e.f. 1st September, 2016. This Court in HARSHAD GOVARDHAN SONDAGAR VERSUS INTERNATIONAL ASSETS RECONSTRUCTION CO. LTD & ORS [2015 (11) TMI 1315 - SUPREME COURT] has held that right of appeal is available to the tenant claiming under the borrower. In KANAIYALAL LALCHAND SACHDEV VERSUS STATE OF MAHARASHTRA [2011 (2) TMI 1277 - SUPREME COURT] this Court has held that DRT can not only set aside the action of the secured creditor but even restore the status quo ante. Therefore, an alternative remedy was available to the Appellant to challenge the impugned order Under Section 17 of the SARFAESI Act even before the amendment to Section 17 of the SARFAESI Act - However, given that the instant appeal has been pending consideration before this Court from the year 2016, it is proposed to examine the case on merits without directing the Appellant to avail the alternative remedy. In Harshad Govardhan Sondagar this Court has categorically held that if the tenancy claim is for any term exceeding one year, the tenancy can be made only by a registered instrument. A Three-Judge Bench of this Court in BAJARANG SHYAMSUNDER AGARWAL VERSUS CENTRAL BANK OF INDIA & ANOTHER [2019 (9) TMI 569 - SUPREME COURT], after considering almost all decisions of this Court, in relation to the right of a tenant in possession of the secured asset, has held that if a valid tenancy under law is in existence even prior to the creation of the mortgage, such tenant's possession cannot be disturbed by the secured creditor by taking possession of the property. If a tenancy under law comes into existence after the creation of a mortgage but prior to issuance of a notice Under Section 13(2) of the SARFAESI Act, it has to satisfy the conditions of Section 65-A of the Transfer of Property Act, 1882. If a tenant claims 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 present case, first of all there is a serious doubt as to the bona fide of the tenant, as there is no good or sufficient evidence to establish the tenancy of the Appellant. According to the Appellant, he is a tenant of the Secured Asset from 12.06.2012. However, the documents produced in support of his claim are xerox copies of the rent receipts and the first xerox copy of the rent receipt is of 12.05.2013 which is after the date of creation of the mortgage - even if the tenancy has been claimed to be renewed in terms of Section 13(13) of the SARFAESI Act, the Borrower would be required to seek consent of the secured creditor for transfer of the Secured Asset by way of sale, lease or otherwise, after issuance of the notice Under Section 13(2) of the SARFAESI Act and, admittedly, no such consent has been sought by the Borrower in the present case. There are no merit in these appeals which are accordingly dismissed.
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