Madhya Pradesh High Court
M/S Rajendra Sales Corporation Through ... vs State Of M.P. on 22 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:1699
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22nd OF JANUARY, 2025
WRIT PETITION No. 41623 of 2024
M/S RAJENDRA SALES CORPORATION THROUGH SIVIL JAIN
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Nandlal Tiwari - Advocate for the petitioner.
Shri Bhuwan Gautam - Government Advocate for respondent/State.
Shri Sanjay Pathak - Advocate for respondent No. 3.
ORDER
Per: Justice Vivek Rusia
This petition under Article 226 of the Constitution of India is filed by
the petitioner seeking direction to respondents No. 2 and 3 not to dispossess
the petitioner from the premises in question till expiry of the tenancy period
i.e. 31.03.2026 as per agreement dated 01.04.2024 (Annexure P/1).
02. According to the petitioner, he entered into tenancy agreement
with respondent No. 4 for a period of 8 years from 01.04.2018 to
31.03.2026. Petitioner is running a shop/godown in the mortgaged property.
On 20.12.2024 he received a notice for vacating the premises on or before
25.12.2024. Petitioner is not aggrieved by any action of the respondent as he
is neither the borrower nor the guarantor. He is in possession of the property
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only as a tenant.
03. Learned counsel for the petitioner submits that the petitioner be
given some breathing time for vacating the said premises atleast till the
property is auctioned by respondent No.3. Petitioner is ready to give
undertaking to respondent No. 3 that he will vacate the premises immediately
after auction sale without creating any hindrance.
04. On the other hand, learned counsel appearing for respondent
No.3 submits that unless the property is vacant and in possession of
respondent No.3, no auction proceeding can be conducted and respondent
would not get better price if the petitioner continues with the possession. He
further submits that petitioner has no right to retain in the mortgaged
property as his tenancy is unregistered deed. In support of his contention,
learned counsel for the respondent has placed reliance on the judgment of the
Apex Court in case of Bajarang Shyamsunder Agarwal vs. Central Bank of
India & Ors. reported in (2019) 9 SCC 94 . The operative part of the
judgment is reproduced hereunder :
''In our view, the objective of Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the
'SARFAESI Act'), coupled with the Transfer of Property Act (hereinafter referred to
as the 'T.P.Act') and the Rent Act are required to be reconciled herein in the
following manner:
a) If a valid tenancy under law is in existence even prior to the creation of the
mortgage, the tenant's possession cannot be disturbed by the secured creditor by
taking possession of the property. The lease has to be determined in accordance with
Section 111 of the TP Act for determination of leases. As the existence of a prior
existing lease inevitably affects the risk undertaken by the bank while providing the
loan, it is expected of Banks/Creditors to have conducted a standard due diligence in
this regard. Where the bank has proceeded to accept such a property as mortgage, it
will be presumed that it has consented to the risk that comes as a consequence of the
existing tenancy. In such a situation, the rights of a rightful tenant cannot be
compromised under the SARFAESI Act proceedings.
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b) If a tenancy under law comes into existence after the creation of a mortgage, but
prior to the issuance of notice under Section 13(2) of the SARFAESI Act, it has to
satisfy the conditions of Section 65A
of the T.P. Act.
c) In any case, if any of the tenants claim that he is entitled to possession of a
secured asset for a term of more than a year, it has to be supported by the execution
of a registered instrument. In the absence of a registered instrument, if the tenant
relies on an unregistered instrument or an oral agreement accompanied by delivery
of possession, the tenant is not entitled to possession of the secured asset for more
than the period prescribed under Section 107 of the T.P. Act.''
05. Considering the facts and circumstances of the case and in the
light of the principle laid down by the Apex Court in case of Bajarang
Shyamsunder Agarwal (supra) no relief can be granted to the petitioner in
this writ petition as he has no statutory or fundamental right to continue in
possession of the mortgaged property and he is liable to vacate the same.
06. With the aforesaid observation, this petition stands dismissed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
