TMI Blog2016 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... f other two co-owners. The Petitioners have sought to establish the tenancy by filing a collusive Suit. That Suit was filed so as to defeat the measures in relation to the mortgaged property in favour of the Bank. Therefore, this Court should not accept the claim of the Petitioners. - CIVIL WRIT PETITION NO.1092 OF 2016 - - - Dated:- 28-7-2016 - S.C. DHARMADHIKARI AND DR. SHALINI PHANSALKAR-JOSHI, JJ. For The Petitioners : Mr. Simil Purohit, a/w. Mr. Manoj Agre and Mr. Girish Kedia, i/by Ms. Divya Sanghvi, For The Respondent : Mr. Vishal B. Thadani, A.G.P., Mr. Nitin Thakkar, Sr. Counsel, a/w. Mr. Rohit Gupta, Mr. Amit Jajoo, Ms. Sushmita Gandhi, Ms. Anisha Zachariah and Ms. Anamika, i/by M/s. PKA Advocates JUDGMENT : [Per S.C. Dharmadhikari, J.] 1. Rule. Respondents waive service. 2. By this Writ Petition, under Article 226 of the Constitution of India, the Petitioners have sought a Writ of Certiorari or any other appropriate writ, order or direction in the nature thereof, calling for the records and proceedings of Case No.67/SA/2012 from the file of the learned Chief Metropolitan Magistrate, Bombay and after examining the legality, validity and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration under various other laws, which is necessary for carrying on business, came to be obtained. The Petitioners claim is that Respondent Nos.4 and 5 had let out the premises to Petitioner No.1-Firm as a monthly tenant. The rent of ₹ 1,000/- per month was agreed upon, together with the obligation to pay the property tax, in respect of the ground and first floor of the building. It is the case of the Petitioners that they were diligent and regular in payment of the monthly rent. There was no default. The Petitioners cannot, therefore, be evicted, except in accordance with the law, namely, the Maharashtra Rent Control Act, 1999. The Petitioners were constrained to file a Suit, being R.A.D. Suit No.692/2011 of 2014 in the Court of Small Causes at Mumbai for a declaration that they are the tenants in respect of the tenancy premises and in which Suit, a Decree was passed on 31st July 2014, declaring the Petitioners to be the lawful tenants. Thus, the status of the Petitioners as lawful tenants has been confirmed by the competent Court. 9. From the record it is then revealed that the third Respondent availed of certain financial facilities from the Bank of Baroda for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Executing Proceedings, were allowed to be amended to correct the area in possession of the Recovery Officer, Debt Recovery Tribunal-II, Mumbai. After the corrections / amendments were carried out, a public notice for sale of the tenancy premises was put up. That described the Petitioner No.1 only as an occupant and not a lawful tenant. Further, the area of the premises was erroneously mentioned as 4187 sq.ft. In pursuance of this bid / notice, nobody came forward to place his or her bid for the property. The Petitioners, being apprehensive about loosing their valuable tenancy rights, made certain application before the Recovery Officer. The Recovery Officer passed an order and the details of the same are referred to in para 14 of the Petition. It is stated that the Recovery Officer was aware of the order and directions of the Tribunal dated 16th March 2011. The Petitioners also referred to the application filed by the second Respondent to this Writ Petition before the Recovery Officer claiming a relief of handing over possession of the entire ground floor of Plot No.1, Shah Industrial Estate, to the Tribunal Receiver. It is stated that after hearing the necessary parties, the Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. The preliminary objection raised to the maintainability of the above Securitisation Application was purported to be dealt with by the Tribunal by its order dated 9th June 2014. Though the Securitisation Application No.322 of 2011 was held to be not maintainable and dismissed, yet, the interim protection therein was extended by four weeks, namely, till 8th July, 2014. The Petitioners, therefore, were of the view that it had correctly moved this Securitisation Application by invoking Section 17 of the SARFAESI Act. The second Respondent questioned its maintainability and at its instance, this order dated 9th June 2014 was passed. Now, the Petitioners have not been able to substantiate the claim of tenancy either in this Securitisation Application or in the proceedings before the learned Chief Metropolitan Magistrate. This once again puts the Petitioners' claim in serious jeopardy. The Petitioners, therefore, filed a Criminal Writ Petition No.2418 of 2014 in this Court. The Petitioners were aggrieved by the two orders of the learned Chief Metropolitan Magistrate dated 23rd January 2013 and 5th February 2013. This Court was pleased to set aside both the orders. This Court als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application was rejected on 10th May 2012 (Annexure- K ). It is in such circumstances that the Assignee of the Debt of the Bank could not have taken recourse to Section 14 of the SARFAESI Act. Thus, there is an abuse of the process of law. Mr. Purohit has relied upon the grounds in the Memo of the present Petition to submit that a lawful tenancy cannot come to an end in the above manner. It is in this circumstances that Mr. Purohit would submit that this Writ Petition should be allowed. 14. Mr. Purohit has relied upon the Judgment of the Hon'ble Supreme Court of India in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Co. Ltd. Ors. In Criminal Appeal No.736 of 2014, along with connected matters and Vishal N. Kalsaria Vs. Bank of India Ors., AIR 2016 SC 530 . 15. On the other hand, Mr. N.G. Thakkar, learned Senior Counsel appearing on behalf of Respondent No.2 (contesting Respondent) submits that the entire Petition is bogus, frivolous and vexatious. He would submit that the Petitioners have not set out any particulars of the tenancy. Mr. Thakkar would submit that the Writ Petition involves disputed questions of fact. The Petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suring 4367 sq.ft. approximately. The factum of creation of mortgage is evidenced by the Memorandum of Entry dated 3rd August 1992, as extended by the Memorandum of Entry dated 23rd December 1994. Annexure A of the affidavit-in-reply is relied upon by Mr. Thakkar in that regard. Mr. Thakkar then relied upon the Recovery Certificate issued by the Debt Recovery Tribunal in favour of the Bank of Baroda in Original Application No.1025 of 2001, the recovery proceedings / Petition No.376 of 2005 and a Deed of Assignment of the Debt dated 28th January 2008 in favour of the Assignee. He would then submit that Respondent No.2-Assignee issued the Demand Notice on 9th June 2009 to Respondent Nos.3 to 6 under Section 13(2) of the SARFAESI Act and submitted that, after meeting of the statutory period of 60 days, the second Respondent took symbolic possession of the property, in respect of which the possession notice dated 27th August 2006 was published in the local newspaper. Mr. Thakkar submits that the property is one-storied building, out of which total ground floor area admeasuring approximately 4367 sq.ft. Only an area of 180 sq.ft. was in possession of Tribunal Receiver and was given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... card and dismiss it. Mr. Thakkar, the learned Senior Counsel, relied upon pages 69 to 71 of the paper-book, which is a copy of the minutes recorded at the time of taking surprise check of the Registered Office of Respondent No.3. This document is dated 31st May 2002 and it records that the other portion of the premises has been occupied by M/s. Otoklin Global, M/s. Otoklin Exports, Otoklin Filters of India and some financial companies of the family / group. Thus, on 31st May 2002, it is not stated that the Petitioners or Petitioner No.1-Firm was in possession of the premises. It is in these circumstances and relying upon Sections 48 and 65A of the Transfer of Properties Act, 1882, that Mr. Thakkar submits that the Petition be dismissed. 18. On this Petition, we had passed an initial protective order on 18th April 2016. In that order, we had recorded the readiness and willingness of Mr. Purohit to produce the relevant documents, which would evidence and prove the claim of tenancy. After that order was passed on 18th April 2016, the Petitioners have filed additional affidavit, which we had taken on record. That additional affidavit is of Petitioner No.2-Dhaval Dilip Jhaveri. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant statutory provisions and the decisions brought to our notice. 21. We had called upon Mr. Purohit to produce a copy of the plaint in the Suit instituted by the present Petitioner No.1 in the Court of Small Causes at Mumbai. 22. Mr. Purohit has fairly produced a copy of the plaint in R.A.D. Suit No.692 of 2011. That Suit was filed against Dilip Kundalal Jhaveri and four others. It is claimed that some time prior to 1998, Petitioner No.1, the Plaintiff in that Suit, was a tenant of the premises, more particularly described in para 1 of the plaint. The Plaintiffs have claimed their use, occupation and possession of the premises since the date of inception of tenancy prior to 1998. The certificate issued by the Sales Tax Officer, Sales Tax Notice, Profession Tax Certificate, the Certificate of Registration issued under the Bombay Shops and Establishment Act, the Certificate of Importer Exporter Code from Ministry of Commerce and some correspondence with the Municipal Corporation of Greater Bombay are relied upon, but these, to our mind, would demonstrate, at best, the physical possession of Petitioner No.1 in respect of the said premises. The cause of action for fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area admeasuring 3740 sq. feet out of the total area of 4367 sq. feet of the premises 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 ₹ 1000/-. 2. The Plaintiffs and Defendants agree that the Plaintiffs shall pay all proportionate outgoings of the tenancy premises i.e. BMC Tax, Water Tax, property tax and electricity charges consumed by them. 3. The Defendants further admit that the Plaintiffs are their tenants prior to 1998 in respect of area admeasuring 3740 sq. feet out of the total area of 4367 sq. feet of the premises on the ground floor of building standing on Plot No.1, Shah Industrial Area, Veera Desai Road, Andheri (West), Mumbai - 400 053 being the Suit Premises herein. The Defendants admit that the Plaintiffs are carrying on their business in the suit premises prior to 1998. 4. The Plaintiffs irrevocably agrees and undertakes to regularly pay rent, permitted increases and the proportionate amount of increases in respect of the suit premises from time to time and within 15 days upon the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants to the Suit on 30/07/2015 and filed the terms promptly and they were accepted on 31st July, 2015. Besides all this, a perusal of the terms resulting in the Decree would reveal that it is a product of collusion and fraud. The Additional Affidavit filed in this Petition in para 14 at page 179 states that as far as the property tax for the entire building including the tenancy premises is paid by the Petitioners since 1998. The Petitioners possess the records reflecting the payments from 1.10.2006 to 30.11.2014. This assertion is in complete contradiction to clauses 2 and 4 of the Consent Decree reproduced above. The words that the plaintiffs (petitioners herein) shall pay and irrevocably agrees and undertakes to regularly pay in these clauses would expose the parties' version before this Court. It is a clear case of a patently false claim of tenancy projected by misleading this Court. To protect parties placing such version before the Highest Court in the State would make complete mockery of the rule of law. This is a clear abuse of the process of this Court. None including the Hon'ble Supreme Court expects upholding of false, bogus and misleading claims of tenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is a Judgment on which heavy reliance is placed by Mr. Purohit as well. We had an occasion to consider some-what identical controversy recently in the case of Atul Daulatrai Desai Vs. State of Maharashtra Ors., in Writ Petition No.7745 of 2016, decided on 7th July 2016 . During the course of considering the claim of tenancy, that too monthly, based on prolonged possession, we had held that in Vishal Kalsaria (supra), the Supreme Court of India, did not doubt the tenancy, nor the claim in that behalf. If such doubts are raised and the claims can be termed as 'bogus and dubious', then, different considerations would apply. 31. We had held in that case that Vishal Kalsaria (supra) would apply when the claim was free from doubt and genuine. From paras 4 and 5 of the Judgment in Vishal Kalsaria (supra) , it was clear that Appellant Vishal Kalsaria therein had filed two Suits in the Court of Small Causes, Mumbai. An application for interim injunction was made therein. That was on the footing that Vishal Kalsaria was in physical possession of the premises, in relation to which the claim of tenancy was laid and that the obstruction to that possession needs to be prev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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