UCO bank v. Chaman Lal & Ors.

CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.Sanjiv Gupta,(KKR), Advocate for the petitioner. Mr. Vishal Garg, Advocate for respondent NO.1 S. D. ANAND, J. This order will dispose of five Civil Revisions bearing Civil Revision Nos. 4784 , 4785, 4786, 4787 and 4822 of 2008 as the same have common questions of law and facts. The facts have been extracted from Civil Revision No.4785 of 2008. Facts, apparent from the record and conceded in the course of the presentation before this Court, in the first instance. Respondent No.1 Chaman Lal (hereinafter referred to as 'the tenant') is a tenant on the premises under reference under respondent no.2- Anita Abrol ( hereinafter referred to as 'the landlady'), on a rent of Rs.1000/- per month, in pursuance of an oral tenancy. The relationship between the tenant and the landlady started with effect from the year 1996. At the time the relationship came into being, a sum of Rs.40,000/- was paid by the tenant to the landlady as 'security' and there was a verbal agreement to the effect that amount aforementioned shall be returned by the landlady to the tenant at the time the latter would vacate the premises aforementioned. The payment of 'security' amount was otherwise not documented. Respondent No.4-M/s D.A.Traders had raised a loan, through its proprietor i.e. Anita Abrol, from M/s UCO Bank (hereinafter referred as 'the petitioner') and mortgaged the premises in lieu thereof. Respondent no.3 (who is otherwise none else or other than the husband of the landlady) Civil Revision No.4785 of 2008 -3- had furnished guarantee for the repayment of the loan aforementioned. The loan did not come to be paid. The petitioner is proceeding in the matter against the premises in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the Act”). The tenant filed a suit for a permanent injunction for restraint of the petitioner from forcibly dispossessing the former from the premises. The plea was allowed by the learned Trial Court, vide order dated

12.4.2006. The restraint order granted by the Trial Court was affirmed by the learned Ist Appellate Court, vide order dated 14.5.2008. The petitioner is in revision against it. Learned counsel, appearing on behalf of the petitioner, argues that the legislative provisions of the Act bar the Civil Court jurisdiction to entertain the controversy of the indicated category. On that premise, he requested for invalidation of the order under challenge. The plea deserves to be merely noticed to be discarded. The reasons therefor are as under:- A similar controversy came up for consideration before the Karnataka High Court. In a judicial pronouncement reported as Hutchison Essasr South Ltd. Vs. Union Bank of India and another AIR 2008 Karnataka 14 (1), it was held therein that the tenant cannot be thrown out by the secured creditor/bank which (secured creditor/bank) can only take symbolic possession of the premises. A similar matter, (Krishan Singh Rana Vs. Haryana State Industrial Development 2001(1) The Punjab Law Reporter 149), came up (though under the State Financial Civil Revision No.4785 of 2008 -4- Corporation Act) before the Apex Court. There also the Apex Court had taken a similar view. The relevant portions of the judgments aforementioned are reproduced hereunder for facility of reference:- Krishan Singh Rana's case (supra) “In the present case question is, respondent while proceeding under Section 29 could it dispossess a tenant. The field of Section 29 is between Corporation and the owner. Respondent-Corporation can do all what is permissible to it under Section 29 as against owner, but as against tenant or person claiming such right could only be evicted in accordance with law by the owner nor or owner who may subsequently come in. But under Section 29 respondent cannot evict the appellant.” Hutchison Essar South Ltd.'s case (supra) “In the case of Samir Mukherjee (supra) (AIR 2001 SC 1696) the Hon'ble Supreme Court has taken the considered view that the existence of the valid lease is a prerequisite for the purpose of invoking rule of constructions and deeming provisions embodied in Section 106 of the Transfer of Property Act. In the absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yuearly rent can be created. If ther lease is not a valid lease within the meaning of the opening words of sEction 106 of the Transfer of Property Act and in the wake of non-registration of the lease agreement, it can only be said that the lease is terminable Civil Revision No.4785 of 2008 -5- without issuing the advance notice to the petitioner by the respondent no.2 or by the respondent no.1, when it steps into the shoes of respondent no.2. I answer the first point by holding that the petitioner is a lessee in the aforesaid premises. The first respondent-Bank's contention that the petitioner is a respasser is absolutely repellable. Even assuming that there are some irregularities in inducting the petitioner into the aforesaid premises, they do no make it an unauthorised occupant, much less a trespasser.” In view of the conceded position that the tenant is in possession of the premises in that capacity under the landlady, the judicial pronouncement aforementioned apply with full vigour to the facts and circumstances of the present case. It follows therefrom that thought he petitioner herein is authorised to proceed against the tenanted premises, all that it can do it to enter into symbolic possession thereof. As the tenancy in favour of the tenant, is proved to have stated prior in point of time ( i.e. before the impugned encumbrance came about), the petitioner shall have to initiate eviction action against the tenant in accordance with law. In the light of the foregoing discussion, all the petitions are held to be denuded of merit and are ordered to be dismissed. March 17, 2010 Pka (S. D. ANAND) JUDGE