The Debts Recovery Tribunal has no jurisdiction to pass an order of eviction against a bona fide tenant in respect of a mortgaged property.

JUDGMENT :

SIDDHARTHA ROY CHOWDHURY, J.

1. This revisional application challenges the Order No. 30 dated 20.9.2006 passed by the learned Presiding Officer, Debts Recovery Tribunal-III, Kolkata and order passed in Appeal No. 3 of 2003 affirming the Order No. 25 dated 06.01.2003 passed by the Recovery Officer in T.R.P. 32 of 2002 under Recovery of Debts Due to Banks and Financial Institution Act, 1993, wherein the Recovery Officer was pleased to direct the Receiver to take appropriate step for causing the suit premises to be vacated immediately and, if necessary, with the active assistance of the local police within two months, coupled with direction upon the Officer-in-Charge of the jurisdictional police station to render all assistance to the learned Receiver for vacating the suit premises.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Despite service, none appears on behalf of the opposite parties.

4. Briefly stated, Smt. Radharani Bose, since deceased, entered into an agreement for lease on 18.7.1951 in respect of the property in question with Sri Nanilal Bose, the then owner/ landlord. The agreement was duly registered and entered in Book No. I, Volume No. 80 pages 152 to 153 being Deed No. 3483 for the year 1951.

5. The legal heirs of the original landlord instituted a suit for eviction of the tenant Smt. Bose. Though learned Trial Court was pleased to pass a decree for eviction, the judgment was set aside by the learned 4th Additional District Judge, First Appellate Court in Title Appeal No. 436 of 1982. Thereafter, the tenanted premises was sold and transferred to Sri Satyanarayan Saha by a registered deed of sale on 9th May, 1993, without affecting the rights and inherent of the petitioner.

6. On 27th January, 2000 Bank of Baroda, opposite party no. 1 filed an application under Section 19 of the DRT Act against opposite party no. 2 for recovery of a sum of Rs. 15,07,290.35/- only being O.A. 1456 of 1997. Since the certificate debtors failed to pay the debts, Recovery Proceeding 18 of 2000 was initiated which was subsequently transferred to Debts Recovery Tribunal-III and renumbered as T.R.P. 32 of 2022.

7. The petition in a bid to get impleaded in the proceeding made an unsuccessful attempt before the Recovery officer. Property was put to sale and bid of one Sri Puran Chand Malani was accepted.

8. The petitioner, invoking the writ jurisdiction of the Hon’ble High Court challenged the order and was relegated to avail the remedy under Section 30 of the Debts Due to Banks and Financial Institution Act, 1993, before the Debt Recovery Tribunal-III.

9. Learned Tribunal, as aforesaid, was pleased to pass the order impugned.

10. Mr. Probal Kumar Mukherjee, learned senior counsel appearing on behalf of the petitioners submits that the petitioners were declared by the competent court of civil jurisdiction to be governed under West Bengal Premises Tenancy Act and they as premises tenants do have certain statutory protection. The property was offered for sale on ‘as is whether is basis’ and the property was purchased with encumbrances attached to the sale. The Debts Recovery Tribunal-III, according to Mr. Mukherjee, is not competent to make a property sold in auction free from encumbrances by summary eviction of a lessee or tenant.

11. In support of his contention, Mr. Mukherjee, relies upon the judgment of this Hon’ble Court in the case of Ratan Kumar Khaitan vs. United Bank of India and Others, (2003) SCC Online Cal. 388, wherein it is held:

“9. The petitioner is a tenant and is, therefore, entitled to all the protections available under the West Bengal Premises Tenancy Act. The Recovery Officer of the Tribunal has no power under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 to pass an order of eviction against a bona fide tenant in respect of a mortgaged property. Therefore, the order impugned in this application is wholly without jurisdiction.