The main legal point established is the requirement for conclusive evidence to establish a legal and valid tenancy in favor of a tenant in cases involving mortgaged property subject to the SARFAESI Act, and the necessity of impleading the bank as a necessary party in cases involving disputed tenancy rights.

AJAY KUMAR MITTAL, J.

1. By way of present petition under Articles 226/227 of the Constitution of India, the petitioner prays for quashing the order dated 19.8.2016, Annexure P.4 passed by respondent No. 2-Additional District Magistrate, Ludhiana whereby the Commissioner of Police, Ludhiana has been directed to provide necessary police help to Tehsildar, Ludhiana (West) to facilitate respondent No. 1-Bank to take possession of House No. 250-C, Village, Dugri, Model Town Extension II, Tehsil and District Ludhiana on an application filed by it under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, “the SARFAESI Act”). Further prayer has been made for a direction to respondent Nos. 1 and 3 not to illegally dispossess the petitioner from the property in question in which he is a tenant since April 2008.

2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner entered as a tenant in the portion consisting of two rooms, one kitchen and bathroom forming part of H. No. 250-C, Village Dugri, Model Town Extension II, Tehsil and District Ludhiana owned by respondent No. 3-Smt. Ramesh Kumari Sharma in the month of April 2008 vide rent deed dated 23.4.2008, Annexure P.1 and since then he has been living peacefully in the said house. In the month of November 2016, some persons started interfering in the peaceful possession of the petitioner in the house on the pretext of increasing the monthly rent. Assuming the said persons to be agents of the landlady, the petitioner filed a civil suit for permanent injunction before the Civil Court at Ludhiana against respondent no. 3 and her husband. The civil court passed interim restraint order dated 23.11.2016, Annexure P.2 against respondent no. 3 and her husband. The petitioner served the said order on respondent no. 3 who informed him that she or any of her agents had not interfered in his possession and rather the prospective buyers of the house had caused interference as respondent no. 1 Bank was trying to sell the house after taking possession of the same under the SARFAESI Act. It was further disclosed by respondent no. 3 that she had availed financial loan from the Bank which was granted against equitable mortgage of several properties including the one in which the petitioner was a tenant. Respondent no. 3 failed to pay the dues within the stipulated time and thus, in terms of the SARFAESI Act, her account became a non performing asset. Thereafter, the Bank served on her notice under Section 13(2) of the SARFAESI Act. On failure of respondent no. 3 to clear the dues from the loan amount within the stipulated period of 60 days, the bank issued notice under Section 13(4) of the SARFAESI Act on 10.12.2015 and had taken possession of her other properties mortgaged with the Bank. The Bank had now filed an application before the District Magistrate, Ludhiana under Section 14 of the SARFAESI Act for seeking possession of the house which was in actual possession of the petitioner and was also mortgaged with the Bank. Vide order dated 19.8.2016, Annexure P.4, the District Magistrate allowed the application filed by the Bank and the Commissioner of Police, Ludhiana was directed to provide necessary police help to Tehsildar Ludhiana (West) to facilitate respondent no. 1 Bank to take possession of the house in question. Hence the instant petition by the petitioner-tenant.

3. We have heard learned counsel for the petitioner.

4. The matter is no longer res integra. In a recent decision of this Court in CWP No. 16193 of 2016 (Anand Sagar vs. State Bank of India & Others), decided on 11.8.2016, the issue has been concluded against the petitioner after examining the legal position with regard to the rights of a tenant in respect of mortgage property. It was recorded as under:-

“5. A Full Bench of this Court in Jagan Nath vs. Mittar Sain, AIR 1970 P&H 104