Madras High Court
M/S.Mturn Automotive Private ... vs The Authorized Officer on 16 August, 2022
W.P.(MD)No.13667 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.13667 of 2022
and
W.M.P.(MD)No.9721 of 2022
M/s.MTURN Automotive Private Limited,
Rep. by its Managing Director,
M.Maruthupandian,
S/o.M.Murugesan,
No.23, Dindigul Main Road,
Paravai, Madurai – 625 402. ... Petitioner
Vs.
1.The Authorized Officer,
Punjab National Bank,
Circle SASTRA Centre,
Chennai South, PNB Tower,
Mezzanine Floor, 46-49 RH Road,
Chennai – 600 014.
2.Fran Rabheal
3.P.Savvas Hussain
4.D.Anbuselvan ... Respondents
R3 & R4 impleaded vide order of
this Court dated 16.08.2022 made
in W.M.P.(MD) No.13592 of 2022
by SSSRJ & SSYJ
1/6
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13667 of 2022
Prayer: Writ Petition filed under Article 226 of Constitution of India,
praying to issue a Writ of Mandamus, to direct the 1st respondent to
allow the petitioner to continue the possession of the rented
premises in Door No.23 (Resurvey No.191/2), Dindigul Main Road,
Paravai, Madurai to the extent of 5836 sq. ft. and the building
constructed therein as per the rental agreement dated 29.01.2022.
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For 1st Respondent : Mr.V.Balasubramanian
Standing Counsel
***
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
This Writ Petition is filed for issuance of a Writ of
Mandamus, to direct the 1st respondent to allow the petitioner to
continue the possession of the rented premises in Door No.23
(Resurvey No.191/2), Dindigul Main Road, Paravai, Madurai,
measuring an extent of 5836 sq. ft. and the building constructed
therein as per the rental agreement dated 29.01.2022.
2. Heard Mr.D.Shanmugaraja Sethupathi, learned
counsel for the petitioner and Mr.V.Balasubramanian, learned
Standing Counsel for the first respondent.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13667 of 2022
3. In the affidavit filed in support of the writ petition,
it is stated that the petitioner has entered into a lease agreement
with the second respondent on 28.01.2019. It is further stated that
the petitioner has paid a sum of Rs.2,50,000/- towards advance
amount to the second respondent and the petitioner undertook to
pay a sum of Rs.22,000/- as monthly rent to the second respondent.
4. As per the terms of lease agreement it is
contended by the petitioner that the tenancy was initially for a
period of 6 years and that the petitioner has also put up an
additional building after getting permission from the second
respondent by spending a sum of Rs.29,05,508/- . It is admitted that
the respondent Bank has advanced a loan to the second
respondent / original owner and proceedings were initiated for
recovery of possession and sale of the secured asset. It is also
admitted that the property itself was sold by conducting e-auction
sale and a third party interest is also created. Based on the
application filed by the petitioner, the purchasers are impleaded as
respondents 3 and 4 in this petition.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13667 of 2022
5. The property, which is the subject matter of sale,
was mortgaged with the first respondent Bank long prior to the
lease of the property in the year 2019. This Court while interpreting
Sub-Section 4A of Section 17 of Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002,
has upheld the independent right of tenants under the Rent Control
Legislation where the tenancy is prior to the mortgage. The
judgment of Hon'ble Supre Court in Vishal N Kalsaria reported in
2016 (3) SCC 762, may not be applied in this case.
6. Unlike a case where a tenant has been inducted
prior to the mortgage, the petitioner in this case plead tenancy after
the mortgagee. Therefore, it is open to the petitioner to establish
their right as contemplated under Section 4-A of Section 17 of
SARFAESI Act, 2002. Unless the petitioner establishes that he does
not fall under claim (a), (b), (c) and (d) of sub-section 4-A of Section
17, he may not claim any independent right as tenant.
7. Learned counsel appearing for the petitioner has
requested this Court to grant interim order till such time the
application to be filed by the petitioner is decided by the Debts
Recovery Tribunal at Madurai.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13667 of 2022
8. Learned Standing Counsel appearing for the
respondent Bank submitted that the proceedings were initiated by
the respondent bank at Chennai and the secured assets are situated
in both Chennai as well as Madurai. It is further stated that the
mortgagor has already filed an application challenging sale
proceedings before the Debts Recovery Tribunal, Chennai and it is
not in dispute that the Tribunal at Chennai is functioning and there
is a Presiding Officer without any break.
9. In view of the above, with liberty preserved to the
petitioner to approach the Debts Recovery Tribunal, Chennai by
making appropriate application under Section 17 of the SARFAESI
Act, 2002, this Writ Petition is dismissed. The respondent Bank shall
not initiate coercive action to take physical possession of the
property for a period of two weeks to enable the petitioner to
approach the Tribunal. No costs. Consequently, connected
Miscellaneous Petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
16.08.2022
Index : Yes / No
sj
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.13667 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
sj
W.P(MD)No.13667 of 2022
16.08.2022
https://www.mhc.tn.gov.in/judis
