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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
B.KRISHNA MOHAN, J.
Barigala Kotesh, S/o. Peturu & another – Appellant
Versus
Bandaru Yedukondalu, S/o. Venkateswarlu – Respondent
Second Appeal No.28 of 2021
Decided on : 12-02-2021
SARFAESI Act – Section 17 – Code of Civil Procedure, 1908 – Section 100 – Transfer of Property Act, 1882 – Section 69A – Penal Code, 1860 – Sections 323, 427, 506, 509 r/w 34 – Eviction – Second appeal is filed against the Judgment and decree in A.S. on the file of the V Additional District Judge, Guntur, FAC III Additional District Judge, Guntur, confirming the Judgment and decree in O.S. on the file of the Senior Civil Judge, Mangalagiri, ordering the eviction of the appellants herein/tenants to deliver the vacant possession of the plaint schedule property to the respondent herein/landlord and comply with the other reliefs granted by the Courts below. – Whether there is a landlord and tenant relationship existed between the plaintiff and defendants – Whether the defendants committed wilful default in payment of rents for the plaint schedule property – Whether the plaintiff is entitled for eviction of defendants as prayed for ? – Whether this appellate Court finds any reasons to interfere with the findings on the trial Court – To what relief
Finding of court: Present case which was dealt by the Courts below is totally falls outside the purview of the proceedings of the SARFAESI Act and the Judgments and decrees of the Courts below do not hit or inject the Debt Recovery Tribunal or any other Appellate Tribunal to function under the provisions of SARFAESI Act with reference to the very same plaint schedule property which is a secured asset mortgaged by the borrower/the landlord/the respondent herein. – There is no conflict of orders passed by the Courts below with the orders that may be passed under SARFAESI Act and RDBI Act 1993. – From the above said facts and circumstances and legal position, it is obvious and evident that the appellants’ relationship is only with their landlord and they are nothing to do with the secured creditor/the banker who advanced housing loan to their landlord as a borrower. – Just because their landlord has become the defaulter before the bank with reference to payment of equated monthly installments of a housing loan with respect to the plaint schedule property, the tenants cannot take undue advantage of the same and exploit by refraining to make payments of rents flouting their oral lease and understanding between the parties. – Second Appeal has to fail as there is no substantial question of law for interference of this Court under Section 100 C.P.C. and the appellants herein are directed to vacate the plaint schedule property within four (4) months from today by complying with the other terms of the decree of the trial Court as it is. – It is needless to mention that the respondent shall bring it to the notice of the secured creditor and the learned Debt Recovery Tribunal in which the proceedings are pending about this Judgment of this Court enabling them to take necessary action and passing of orders suitably with respect to the secured asset of the respondent herein/borrower under the provisions of SARFAESI Act r/w RDBI Act.
Result: Second Appeal Dismissed
JUDGMENT :
This second appeal is filed against the Judgment and decree in A.S.No.82 of 2020 on the file of the V Additional District Judge, Guntur, FAC III Additional District Judge, Guntur, dated 21.12.2020 confirming the Judgment and decree in O.S.No.122 of 2016 on the file of the Senior Civil Judge, Mangalagiri, dated 05.05.2020 ordering the eviction of the appellants herein/tenants to deliver the vacant possession of the plaint schedule property to the respondent herein/landlord and comply with the other reliefs granted by the Courts below.
2. The appellants herein are the appellants in the first appeal and the defendants in the suit. The respondent herein is the respondent in the first appeal and the plaintiff in the suit.
3. Heard the learned counsel for the appellants and the learned counsel for the respondent.
4. The plaintiff initiated an action in O.S.No.122 of 2016 on the file of the Senior Civil Judge, Mangalagiri against the defendants for eviction and delivery of the vacant possession of the plaint schedule property, for the payment of arrears of Rs.4,25,700/-and damages for use and occupation unauthorisedly from 01.03.2016 to 31.05.2016 at the rate of Rs.20,000/-per month with interest at the rate of 24% per annum from the date of suit till the date of realisation and costs.
5. The plaintiff contends that he is the absolute owner of the plaint schedule property, the defendants herein took the said property/apartment/flat on 01.11.2011 for a monthly rent of Rs.8,000/-under an oral lease and the rent was enhanced to Rs.12,900/-per month with effect from 01.12.2012, in-spite of enjoying the possession of the said property as tenants, the defendants have committed default in payment of monthly rent with effect from 01.12.2012, due to which the plaintiff became a defaulter before the creditor bank of ICICI Bank, in those circumstances he filed a case in RCC No.4 of 2013 before the Rent Controller, Mangalagiri for eviction against the 1st defendant and the same was allowed and the appeal preferred by the 1st defendant/tenant in RCA was allowed setting aside the order in RCC on the point of jurisdiction, as such the defendants continued as tenants in the schedule premises without paying any rents with effect from December, 2012 and that apart the defendants filed a suit in O.S.No.291 of 2015 on the file of the Principal Junior Civil Judge, Mangalagiri for permanent injunction against the landlord/plaintiff herein which is being contested by the plaintiff herein. Subsequently the plaintiff got issued a statutory notice, dated 03.02.2016 to the defendants terminating the lease of the schedule property/apartment by the end of the month of February, 2016 calling upon them to vacate the plaint schedule property within 15 days from the date of receipt of the said notice by paying the arrears of rent since December, 2012 till the date of vacation of the premises at the rate of Rs.12,900/-per month and payment of damages for the unauthorised occupation at the rate of Rs.20,000/-per month till the premises is vacated. Since the defendants did not comply with the said demand notice, the plaintiff was constrained to file the suit for eviction, for damages and recovery of arrears of rent since December, 2012 to till the date of eviction.
6. Then, the defendants filed a written statement denying the averments and contentions of the plaintiff contending further that the plaintiff purchased the plaint schedule property/the apartment under a valid registered sale deed obtaining loan from ICICI Bank, Bandar Road Branch, Vijaywada, became a defaulter in payment of loan installments and as such the plaintiff intended to sell the said property, then one Mr. Barigala Suresh, purchased the said property for an amount of Rs.18 lakhs by paying an advance amount of Rs.5 lakhs under an agreement of sale dated 13.10.2011, the said purchaser is none other than the brother of the 1st defendant, the plaintiff delivered the possession of the suit schedule
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