Andhra Pradesh High Court - Amravati
Ss Upper Primary School vs Union Of India on 13 August, 2024
APHC010350552024
IN THE HIGH COURT OF ANDHRA PRADESH Bench Sr.No:-10
[3483]
AT AMARAVATI
WRIT PETITION No.17780 of 2024
SS Upper Primary School, Regd.137T/A2/2023 A unit of
Bethamcherla Venkateswarlu, Nageswaramma Memorial Trust,
D.No.7-321, B V N Nivas, Gandhipet 1st line, Chilakaluripet,
Palnadu District, Andhra Pradesh 522616 Rep., by its
Correspondent Kothapalli Srinivasa Rao
...Petitioner
Vs.
Union of India and others ...Respondents
**********
Mr. T. C. Krishnan, Advocate for the petitioner.
Mr. Sreedhar Valiveti, Advocate for Respondent(s) Bank.
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE RAVI CHEEMALAPATI
DATE : 13th August, 2024
Per Dhiraj Singh Tharkur, CJ (oral) :
The petitioner claims to be a tenant in a property, which is the subject
matter of proceedings under the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 [for short, 'the
SARFAESI Act'].
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2. The petitioner claims that the principal borrower had inducted the
petitioner as a tenant through an unregistered rent deed, dated 06.11.2021
and, therefore, the proceedings initiated with regard to the property in
question, which is the subject matter of mortgage in the year 2015 cannot be
permitted to proceed further contrary to the interests of the tenant.
Reliance is placed upon the judgment of the Apex Court in Vishal
N. Kalsaria v. Bank of India and others [(2016) 3 SCC 762] wherein it is
stated that the Supreme Court has recognized the right of a tenant against
eviction in terms of the proceedings initiated under the SARFAESI Act.
3. A perusal of the judgment rendered in the case of Vishal
N. Kalsaria would show that the same places reliance on another decision
rendered by the Apex Court in Harshad Govardhan Sondagar v.
International Assets Reconstruction Co.Ltd., and others [(2014) 6 SCC 1].
The final conclusion drawn by the Apex Court in Vishal N. Kalsaria is
that the provisions of the SARFAESI Act would not override the provisions of
the various Rent Control Acts and therefore the Bank cannot evict a tenant
from the tenanted premises which becomes a secured asset of the Bank after
the default of loan by the landlord and the procedure laid down in the various
Rent Control Acts cannot be permitted to be made redundant.
4. On a reading of the provisions of the SARFAESI Act, it can be
seen that Section 17 (4A) was introduced by way of an amendment in the year
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2016 envisaging that any person claiming any right on account of tenancy or
lease upon the secured asset, should approach the Debts Recovery Tribunal
who after examining the facts of the case and evidence would have the
jurisdiction to examine whether the lease or tenancy - had expired or stood
determined, was contrary to Section 65A of the Transfer of Property Act,
1882, was contrary to the terms of mortgage or was created after the issuance
of notice of default and demand by the Bank under sub-Section (2) of Section
13 of the SARFAESI Act.
Section 17 (4A) (ii) further envisages that in case the Debts Recovery
Tribunal is satisfied that the tenancy or leasehold rights claimed in the secured
asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-
clause (d) of sub-clause (i), then notwithstanding anything to the contrary
contained in any other law for the time being in force, the Debts Recovery
Tribunal may pass such order as it deems fit in accordance with the provisions
of the SARFAESI Act.
5. In the present case, according to the stand taken by the
petitioner, a rent deed has been executed between the parties on 06.11.2021.
However, it is an unregistered document and purportedly executed much later
than the date on which the mortgage was created in the year 2015. Whether
the interests in the petitioner as a tenant were created contrary to the terms of
the mortgage executed between the Bank and the principal borrower is also a
matter which needs to be seen by the DRT along with the other issues as to
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whether the tenancy has since expired or had been determined. In any case,
these issues can very well be agitated before the DRT, which is obliged to go
into all these issues and determine as to whether the petitioner needs to be
protected as a tenant or not.
6. Be that as it may, in view of the availability of an alternate remedy
to the petitioner, we leave the petitioner free to avail such remedy those are
available in law.
7. We do not find any merit in the present Writ Petition, which is
accordingly dismissed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ
RAVI CHEEMALAPATI, J
Vjl
