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2018 Supreme(Bom) 478
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR-JOSHI, J.
Amit Mohan Bhatia - Petitioner
Versus
Maratha Sahkari Bank Ltd., Matushree Co-operative Hsg. Soc. Ltd., Through its Recovery Officer Bhalchandra Nathuram Raut & Others - Respondents
Writ Petition Nos. 2298 of 2018, 2299 of 2018 & 2300 of 2018
Decided On : 22-02-2018
For the Petitioner:Vishal Kanade, a/w. Girish Thakur, Advocates.
For the Respondents:Mahesh N. Devlekar, Advocate, A.A. Alaspurkar, A.G.P.
The judgment emphasizes the importance of providing convincing evidence to establish a claim of tenancy and considers the possibility of collusion between the parties.
Headnote:
Tenancy - Challenge to order of Chief Metropolitan Magistrate - Maharashtra Co-operative Societies Rules, 1961 - Sections 14 and 17(4A) of the SARFAESI Act - Judgment of the Apex Court in Vishal N. Kalsaria Vs. Bank of India and Ors., (2016) 3 SCC 762, and Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Ors., (2014) 6 SCC 1
Fact of the Case:
The Petitioner challenged the order of the Chief Metropolitan Magistrate, Mumbai, regarding possession of the attached property, claiming to be a tenant. The Trial Court rejected the application, and the High Court set aside the order, remanding the matter back to the Trial Court for fresh hearing. The Trial Court again rejected the application, leading to the challenge in the Writ Petition.
Finding of the Court:
The Trial Court's rejection of the claim of tenancy was upheld by the High Court, which found that the Petitioner failed to establish the plea of tenancy and that the Trial Court did not commit any error in rejecting the claim.
Issues: The main issue was whether the Petitioner could establish his claim of tenancy in the attached property.
Ratio Decidendi: The Court held that the Petitioner failed to provide convincing evidence to establish his possession as a tenant, and the documents produced did not support his claim of tenancy. The Court also considered the possibility of collusion between the Petitioner and the landlord.
Final Decision: The Writ Petition was dismissed, and the Trial Court's order was upheld.
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Kanade, learned counsel for the Petitioner, Mr. Devlekar, learned counsel for Respondent No.1-Bank, and Mr. Alaspurkar, learned A.G.P. for Respondent No.4-State.
2. By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 9th February 2018 passed by the Chief Metropolitan Magistrate, Mumbai, below “Exhibit-9” in Case No.72/SA/2017.
3. The application at “Exhibit-9” was filed by the present Petitioner in his capacity as an 'Intervenor', claiming himself to be a 'tenant' in the Secured Assets. It was contended by him that, as per the 'Agreement of Tenancy' dated 30th March 2000, he is a bonafide tenant of the attached property. In this respect, reliance was placed by learned counsel for the Petitioner on the Judgment of the Apex Court in the case of Vishal N. Kalsaria Vs. Bank of India and Ors., (2016) 3 SCC 762, to submit that, the Petitioner cannot be dispossessed or evicted from the attached property, without following the due procedure of law.
4. The Trial Court has, however, holding that the issue of tenancy has to be decided by the Debt Recovery Tribunal and he is not required to look into it, vide order dated 29th December 2017, rejected the said application and allowed the Application of Respondent No.1-Bank filed under Rule 107(11)(vi)(a) of the Maharashtra Co-operative Societies Rules, 1961. The Special Recovery Officer was, accordingly, allowed to take possession of the attached property.
5. Against this order of the Trial Court, the Petitioner has approached this Court by filing Writ Petition No.212 of 2018 and this Court has, vide its order dated 23rd January 2018, set aside the said order, remanding the matter back to the Trial Court for fresh hearing on “Exhibit-9”, after giving an opportunity of hearing to both the parties on all the aspects, including the issue of tenancy.
6. Thereafter, the Trial Court has again heard learned counsel for both the parties and passed the impugned order rejecting the application at “Exhibit-9”.
7. This order of the Trial Court is challenged in this Writ Petition by learned counsel for the Petitioner by submitting that, the Trial Court has relied upon the Judgment of the Apex Court in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Ors., (2014) 6 SCC 1, to hold that, “The alleged tenant has to produce proof of execution of a registered instrument in his favour by the 'Lessor' and when he does not produce such proof and relies only on an unregistered instrument or oral agreement, accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the Secured Assets for more than a year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.”
8. It is urged that, this stand taken up by the Apex Court in the case of Harshad Govardhan Sondagar (Supra), was re-considered by the Apex Court in the case of Vishal N. Kalsaria (Supra) and it was held in paragraph No.30 of the said Judgment that, “Mere factum of non-registration of the 'Instrument/Deed' will not make the lease itself nugatory. If no written 'Lease Deed' exists, then, such tenants are required to prove that they have been in occupation of the premises as 'tenants', by producing such evidence in the proceedings under Section 14 of the SARFAESI Act before the learned Magistrate.”
9. It is urged that, in the instant case, therefore, merely because the registered instrument of 'Lease Deed' is not produced, the Trial Court has refused to accept the tenancy of the Petitioner and hence, this finding of the Trial Court is required to be quashed and set aside, as it is not in accordance with law. Further it is submitted that, the Tria
