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TMI Blog2016 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... , 19th December 2015 and 29th December 2015, the same be quashed and set aside. This relief is sought in the following facts and circumstances. 3. The first Petitioner before us is claiming to be a Partnership Firm, registered under the Indian Partnership Act, 1932. It is engaged in the business of manufacturing various kinds of filters and filtration system used for industrial purposes. It is stated that the Firm operates from the business premises admeasuring 3740 sq.ft., lying and situated at Ground Floor, Plot No.1, Shah Industrial Estate, Veera Desai Road, Andheri (West), Mumbai-400053. 4. It is stated that these premises are in the possession of the Petitioners prior to 1998. The third Respondent to this Writ Petition is a Company incorporated under the provisions of the Indian Companies Act, 1956 and in the business as above, so also of pipe coating from a factory at MIDC, Taloja, District Thane and in the State of Gujarat. 5. The second Petitioner is an individual and a Partner of the first Petitioner. The claim of the Petitioners further is that from the premises on the Ground Floor in Shah Industrial Estate, about 627 sq.ft. were being used as a registered office by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 on 15th October 2001 before the Debt Recovery Tribunal- II, Mumbai against Respondent Nos.3, 4, 5, 6(i) and 6(ii) for recovery of the so called outstanding amount. The claim of the Bank referred to certain security interest created and styled as a mortgage of immovable property. The mortgage by deposit of Title Deeds in relation to certain immovable properties at Mumbai included the tenancy premises. It is stated that in the Original Application, the third Respondent pointed out that majority of the properties were in possession of the tenants and they should not be evicted only on the strength of a Recovery Certificate. This legal position was not disputed by anybody and, therefore, though the Recovery Certificate was issued, the Debt Recovery Tribunal did not empower the Recovery Officer attached to it to dispossess anybody, save and except in accordance with the law. The Petitioners place reliance upon the order dated 5th September 2005 of the Debt Recovery Tribunal- II, Mumbai in Original Application No.1025 of 2001. The Petitioners also rely upon Annexure-I to the Writ Petition, being a copy of the minutes of the meeting before the Official Liquidator dated 31st May 2002, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent still prevailed upon the authorized officer to issue notice styled as Possession Notice dated 22nd August 2011 and referable to Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short "SARFAESI Act"). This was to take possession of entire ground and first floor of the building. The Petitioners, in paras 18 and 19 of the Petition, have referred to the public notice and the reply thereto by the second Respondent by an Advocate's notice. There is a reference made to a rejoinder and eventually it is stated that against the pasting and issuance of notice under Section 13(4) of the SARFAESI Act, the Petitioners preferred Securitisation Application No.322 of 2011. The Petitioners' reference to the contents of this Securitisation Application and its prayers is in para 19 of the Petition. 11. The Petitioners then refer to the application under Section 14 of the SARFAESI Act made by the Respondent-Company. The Petitioners were apprehensive of loosing their tenancy and that is why applied before the Chief Metropolitan Magistrate for intervention. That application was rejected on 23rd January 2013. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itan Magistrate and the said Chief Metropolitan Magistrate was directed to dispose of the same within four months. This order of this Court was challenged by the aggrieved Respondents to the Writ Petition in the Hon'ble Supreme Court of India. However, there was no stay to the said order from the Supreme Court. The result would be that a senior citizen is dispossessed from the premises, though the Judgment of the Supreme Court in Sondagar's case (Supra) supports the Petitioners' version. The Petitioners then received the order rejecting the Intervention Application filed by them. The Chief Metropolitan Magistrate made the Securitisation Application No.67/SA/2012 absolute. The assistance under Section 14 of the SARFAESI Act by the Chief Metropolitan Magistrate was granted so as to take forcible possession of the tenancy premises from the Petitioners. The three orders to the above effect are Annexures "R", "S" and "T". They are dated 6th November 2015, 19th December 2015 and 29th December 2015. 13. It is these orders which are challenged in the present Petition by the Petitioners. Mr. Purohit, learned counsel appearing on behalf of the Petitioners, submits that the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted prior to creation of the mortgage. If there is a written agreement of tenancy, then, that should have been produced and if that written agreement is in force, then, it should have been registered. 16. In the present case, the mortgage was created in favour of the predecessor-in-title of the second Respondent in 1992. That mortgage was declared as to be valid and binding by the Debt Recovery Tribunal-II, Mumbai on 5th September 2005 in its order passed in the Original Application No.1025 of 2001. There is no written document of tenancy. There is absolutely no registered instrument on record either. In these circumstances, a very vague submission as made by Mr. Purohit that there was a tenancy much prior to 1998, cannot be accepted. The relevant documents evidencing creation of such tenancy, which is, admittedly, after the mortgage in favour of the predecessor-in-title of Respondent No.2, therefore, should not be protected by this Court. Further, Mr. Thakkar submits that Petitioner No.2-Dhaval Dilip Jhaveri is a Director and Promoter of Respondent No.3. That the Petitioner No.2 is the son of Dilip Jhaveri. Dilip Jhaveri is the part-owner of the property and nephew of other two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself was put in possession of the smaller property by the Official Liquidator. The remaining area on the ground floor admeasuring 4187 sq.ft. continues to be in illegal possession of Petitioner No.1. It is that property / part over which the claim of tenancy is laid. Mr. Thakkar submits that the Petitioners went on delaying the proceedings, namely, the Securitisation Application No.67/SA/2011 before the Chief Metropolitan Magistrate, Mumbai. There were several frivolous applications made in that proceedings. Mr. Thakkar then invites our attention to the proceedings before the Chief Metropolitan Magistrate. Mr. Thakkar submits that the Special Leave Petition to challenge the order of this Court dated 9th July 2014 in Criminal Writ Petition No.2418 of 2014 is pending. Still the second Respondent participated in the proceedings before the learned Chief Metropolitan Magistrate, Mumbai, without prejudice. The Chief Metropolitan Magistrate has given the Petitioners extensive opportunities. Mr. Thakkar, therefore, supports the impugned orders and submits that the Writ Petition be dismissed. 17. A list of dates and events was handed over by Mr. Thakkar. He also handed over a copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 3, 4, 5 and 6 of the additional affidavit are, therefore, nothing but a reiteration of the Petition averments. It is pertinent to note that this Court had recorded the statement of Mr. Purohit that he would produce relevant and material documents to prove the existence of tenancy. However, Exhibits "1" and "3" to this additional affidavit cannot be said to be any documents proving the same. On the other hand, the Petitioners rely upon Exhibit-2 to the additional affidavit, which are nothing but the copies of covering letters addressed to the Municipal Corporation of Greater Bombay. The photocopies of some cheques have been produced to show that they would evidence payment of property taxes. However, the additional affidavit fails to annex the record reflecting payments made from 1st October 2000 till 31st November 2014 of property tax of the entire building, including the tenancy premises, paid by the Petitioners since 1998. That is not forthcoming. Exhibit No.3 to this additional affidavit is to support the version of the payment made to M/s. Ghanshyam Co-operative Industrial Estate Limited, which is the building in which the tenanted premises are allegedly located, of Rs. 1,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.1 and 2 to the Suit as well as the father of Defendant Nos.3, 4 and 5 were guarantors and the property was offered as a security to repay the amount of the credit facility with interest thereon. The default committed by M/s. Otoklin Plants & Equipments Ltd., the appointment of Official Liquidator, are all the facts relied upon and we find that identical averments are incorporated in the memo of the present Petition. There is a reference made to the International Assets Reconstruction Company Private Limited, which is the Asset Reconstruction Company before us. The Petitioners / Plaintiffs therein have not joined either the Bank or the International Assets Reconstruction Company Private Limited as a party-Defendant. They have also not impleaded the Official Liquidator. Be that as it may, the Suit claims a declaration that the Plaintiffs are duly protected as tenants under the provisions of the Maharashtra Rent Control Act, 1999. 23. It is in these circumstances, that we are of the view that Mr. Thakkar is right in contending that such a Suit, which has been brought before the Court of Small Causes, Mumbai on 4th October 2011 and the Consent Decree or terms therein would not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. BMC Tax, Water Tax, property tax and electricity charges consumed by them. 5. The parties hereto agree and undertake to this Hon'ble Court to execute such further and other documents, assurances and writings as may be required by the Plaintiffs and/or their nominees and/or assigns for the purpose of implementing and/or carrying out the intents of these Consent Terms. 6. The suit is decreed in terms of prayer clause (a) above i.e. Defendants accept the Plaintiffs are monthly tenant in respect of the premises i.e. area admeasuring 3740 sq. ft. on the ground floor of building standing on Plot No.1, Shah Industrial Area, Veera Desai Road, Andheri (West), Mumbai - 400 053 (hereinafter referred to as the "Suit Premises") for a monthly tenancy rent of Rs. 1000/-. 7. Decree in terms of the consent terms. 8. No order as to cost. 9. Refund of court fees as per the rules." 25. The order decreeing the Suit in terms of the Consent Decree reads as under:- "1. The authorized signatory of the plaintiff, defendant No.1 for self and on behalf of the defendant Nos.2 to 5 and their Advocates are present before me. 2. The Consent Terms is signed by the plaintiff and defendants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oda. In other words, the mortgage created in favour of Bank of Baroda and the steps taken by the Bank of Baroda can never be and have never been questioned. There is no reference to the tenancy in any of the documents, including the Recovery Certificate issued by the Debt Recovery Tribunal-II, Mumbai. Mr. Thakkar, therefore, is right in contending that, until all the steps were taken by Respondent No.2 to this Writ Petition, by invoking the provisions of SARFAESI Act, the claim of tenancy was not asserted. In fact, the Securitization Application (S.A. No.322 of 2011) was filed before the Debt Recovery Tribunal-II, Mumbai. In all this time and after the institution of this Securitisation Application, symbolic possession of the premises was obtained on 22nd August 2011. The Petitioners were not found anywhere on the scene. There is absolutely no document evidencing payment of rent. There has been no record produced, which would evidence payment of statutory dues and permitted increases. It is not a co-incidence that Petitioner No.2, Partner of Petitioner No.1, is also a Director of the Company in liquidation. It is in these circumstances that Mr. Thakkar has rightly claimed the tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and promptly approach the Court of competent jurisdiction, file a suit and make an interim application therein seeking protection against their dispossession. In such cases, the Chief Metropolitan Magistrate was bound to take note of the claims and the pending proceedings. It is in these circumstances and when there was no requirement of producing any registered instrument, that the Hon'ble Supreme Court stepped in and protected the parties like Vishal Kalsaria. In para 10 of our Judgment, we had held as under :- "We do not think that any claim of tenancy vaguely set up and without any proof or contemporaneous record of its creation and continuance is protected and with greatest respect by the judgment of the Hon'ble Supreme Court. A judgment cannot be read like statutes. Eventually if the Rent Control Legislation and the benefit thereof can be availed off by tenants and occupants, the initial burden is on them to establish and prove the existence of a tenancy and that will be in jeopardy by the act of either the principal borrower or the bank. In the present case, we do not think any such proof is forthcoming, more so, when the challenge to the order passed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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