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2016 (9) TMI 20 - BOMBAY HIGH COURT

2016 (9) TMI 20 - BOMBAY HIGH COURT - TMI - Validity of mortgage - Held that:- 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 circumst .....

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Dilip Jhaveri is the part-owner of the property and nephew of 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 Puro .....

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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 correctness of the three orders passed therein dated 6th November 2015, 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 Partners .....

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ndent 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 this third .....

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ereto. One Shirish Jhaveri was brother of Respondent Nos.4 and 5. The said Shirish Jhaveri expired in 1994. Respondent No.6(i) to (iii) are his legal heirs and representatives. The second Respondent is an Asset Reconstruction Company and has taken over the debt of Bank of Baroda. The Petitioners state that Respondent Nos.4 and 5 along with deceased Shirish Jhaveri were the Directors of Respondent No.3. 8. The Petitioners have set out as to how after formation of Petitioner No.1-Firm in 1997, the .....

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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 o .....

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d 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 .....

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a copy of the minutes of the meeting before the Official Liquidator dated 31st May 2002, which would confirm that the possession of 627 sq.ft. area on the ground floor of the building came to be handed over and that is how the record of the Official Liquidator would indicate and confirm the events, which occurred during obtaining the said possession. 10. Then it is stated that the Bank of Baroda assigned its debt by a Deed of Assignment dated 21st January 2008 in favour of the second Respondent .....

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less than 200 sq.ft. of the area. The Tribunal Receiver, acting in execution of the Recovery Certificate, did not take possession of the balance portion. Then it is stated that the proceedings, namely, 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 .....

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ware 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 Recovery Officer was pleased to reject the application on 10th May 2012. However, the second Respondent .....

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vocate 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 Peti .....

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bunal-II, Mumbai, the Supreme Court delivered its verdict 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. The Petitioners submit that this Judgment recognized and protected the tenants and it was held that the Chief Metropolitan Magistrate / District Magistrate cannot, in the garb of resorting to Section 14 of the SARFAESI Act, interfere with the physical possession of the parti .....

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n 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 .....

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tted the Petitioners to file an Intervention Application before the learned Chief Metropolitan 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 Judgm .....

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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 impugned orders are contrary to law. The said orders are passed at the instance of the Assignee of the Debt of the Bank. If the Bank/Original Decree-holder has accepted the Petitioners' tenancy, then, this Assignee w .....

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Debt Recovery Tribunal-II, Mumbai and the order passed on 5th September 2005. This was the order allowing the Original Application No.1025 of 2001 and pursuant to the said order, the Bank of Baroda and Respondent No.2 had initiated Execution Application No.322 of 2005, in which an application for forcible dispossession of the Petitioners from the tenancy premises was made, but that application was rejected on 10th May 2012 (Annexure- K ). It is in such circumstances that the Assignee of the Deb .....

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ndagar 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 .....

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ondent 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, wh .....

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ed 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. The tenancy is bogus and fake. Mr. Thakkar relies upon the Judgment of the Hon'ble Supreme Court in Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited & Ors., (2014) 6 SCC 1. The Petitioner No.2 is the son of the owner of the premises, who created the mortgage. Thus, none of the Petitioners are s .....

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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 .....

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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 the authorized officer of the second Respondent by the Receiver of the Debt Recovery Tribunal-II, Mumbai, who himself 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 t .....

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d 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 plaint, i .....

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s unnecessary, still the Petitioners will have to produce evidence of payment of rent. If the rent was paid and also the property taxes, then, the Petitioners could have definitely produced the requisite receipts. If the rent and permitted increases were payable, then, the quantum ought to have been mentioned. The quantum may have remained static, but proof of payment of that quantum is not forthcoming. The relationship between the parties being already demonstrated, Mr. Thakkar submits that thi .....

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al 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 rele .....

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ts. 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 som .....

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hich is the building in which the tenanted premises are allegedly located, of ₹ 1,00,000/-. That is to be appropriated to the rent payable to the landlords for granting tenancy. It was an obligation on the landlords, as per the instructions of Respondent Nos.4, 5 and 6, which the Petitioners have discharged. However, Exhibit No.3 is a letter dated 1st February 2010 addressed by the authorized signatory of Petitioner No.1. It is referring to some verbal understanding on the subject of payme .....

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sidered the contentions of both sides. We have also perused the relevant annexures to the Petition and the affidavit / additional affidavit. We have also perused 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 .....

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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 filing the Suit is stated to be that one Otoklin Plants & Equipments Limited obtained Banking facilities from Bank of Baroda. Defendant Nos.1 and .....

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ate 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 t .....

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he said Suit, a decree came to be passed by the Ld. Small Causes Court, Mumbai on 31.7.2014 thereby declaring the Petitioners as lawful Tenants in respect of the said Tenancy premises and as such the status of the Petitioners being a Tenant is confirmed by the Competent Court of jurisdiction." 24. The Consent Terms, copy of which is at Exhibit "G" to the Petition, read thus: "1. The Defendants are landlords and owners of the premises on the ground floor of building standing o .....

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r 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 o .....

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to pay the same. In addition to the above, the Plaintiffs agreed to pay all outgoings in respect of the said tenancy premises 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 Te .....

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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. The respective Ld. Advocates of the plaintiff and defendant have identified their signatures on Consent Terms. The contents of Consent Terms are read over and explai .....

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r as to costs. Court fee be refunded to the plaintiff as per rules. Decree be drawn up accordingly." 26. It is pertinent to note that the terms have been prepared, signed and filed by the Petitioner No.2 and his father Dilip Kundanlal Jhaveri. The said Dilip obtained a Special Power of Attorney in favour from the other Defendants 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 .....

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rein) "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 upholdin .....

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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 premi .....

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so not been able to place before this Court any material justifying the order of the Court of Small Causes, Mumbai. He has also not been able to place before this Court any order, which would conclusively prove and establish the Petitioners' claim of monthly tenancy, being genuinely protected by the Court of competent jurisdiction. In such circumstances, we do not think that the Chief Metropolitan Magistrate was in error in allowing the application made by the second Respondent. He has right .....

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t 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 te .....

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of the premises, in relation to which the claim of tenancy was laid and that the obstruction to that possession needs to be prevented. The Court of Small Causes, Mumbai passed a detailed order at an interlocutory stage and granted interim injunction in above terms. Thus, these are cases where the parties in physical possession, fearing eviction and dispossession and promptly approach the Court of competent jurisdiction, file a suit and make an interim application therein seeking protection again .....

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f 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 forthc .....

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