IMPORTANT POINT
The main legal point established in the judgment is that the existence of a valid tenancy can affect the rights of the secured creditor under SARFAESI Act, emphasizing the need for due diligence by banks and the rights of tenants in such cases.

JUDGMENT

D.V.S.S.SOMAYAJULU,J. - This Writ Petition is filed by the tenants in the property seeking declaration that they have been highhandedly dispossessed by the respondent-bank through an Advocate Commissioner appointed under the provisions of Sec. 14 of the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI Act") by the Chief Judicial Magistrate, Machilipatnam.

2. The prayer is for a mandamus declaring the action taken by the Bank as highhanded.

3. This Court has heard Sri P.S.P. Suresh Kumar, learned counsel for the petitioners and Sri Prudviraju Mudunuri, learned standing counsel for the 1st respondent-Bank.

4. With the consent of both the learned counsel the Writ Petition itself is taken up for hearing since an objection was raised as to the very maintainability of the writ petition itself.

5. Sri P.S.P. Suresh Kumar, learned counsel for the petitioners argued that the petitioners are tenants of the property consisting of land and building in R.S.No.5/3, Plot No.10, bearing Door No.4-11-4A Gangadharapuram (V), Bommuluru Gram Panchayat, Krishna District. They state that they have entered into a lease in the year 2013, which was valid for a period of 10 years and that they are in settled peaceful possession of the property. It is stated that the lease is existing prior to the mortgage of the property and that therefore the highhanded action of the respondent-bank intaking over the possession through an order of the Chief Judicial Magistrate, Machilipatnam, is contrary to law. Learned counsel submits that since the petitioners are not the borrowers he cannot take any steps to protect his interest in the Debts Recovery Tribunal and before the impugned action is taken this Court should come to the aid of the petitioners, who are in settled possession for more than a decade, and that the Writ Petition should, therefore, be ordered.

6. Learned counsel for the respondent-Bank on the other hand submits that the writ is not maintainable. On the basis of unregistered rental agreement dtd. 25/12/2013 the petitioners are claiming to be in possession and that the documents filed are all of recent origin and do not show the petitioners alleged possession from 2013 onwards. It is submitted that the unregistered lease is created for the purpose of this litigation only. Therefore, learned counsel submits that this is an engineered litigation to prevent the bank from taking over the possession of the property. Learned standing counsel for the Bank points out that in view of the judgments of the Hon'ble Supreme Court of India reported in Bajarang Shyamsunder Agarwal v. Central Bank of India,(2019) 9 SCC 94. and the earlier judgment in Vishal N. Kalsaria v. Bank of India,(2016) 3 SCC 762. a writ is not proper remedy and the Court should not interfere in matters of this nature, particularly under writ jurisdiction.

7. The issues raised are set out in the course of the arguments, which are reproduced earlier. The fact remains that the rental agreement, dtd. 25/12/2013, which is for a period of 10 years, has not been registered. The petitioners are claiming to be in possession pursuant to this. The documents filed along with the writ petition do not show the alleged settled possession from 2013.

8. In respect of the question of law this Court is of the opinion that Ss. 106 (1) and 107 of the Transfer of Property Act (for short "TP Act") are to be noted: Sec. 106 (1) of the TP Act is to the following effect:

"106. Duration of certain leases in absence of written contract or local usage.-(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on