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SURYA PRAKASH KESARWANI, CHANDRA KUMAR RAI
Bank of Baroda, Branch Rosarb, Agra – Appellant
Versus
State of UP – Respondent
Parties Involved: Petitioner is Bank of Baroda, Branch Rossar Bazar, Agra; Respondents include State of U.P., Additional District Magistrate (Finance & Revenue), Agra (ADM), owner Smt. Roopa Singh (Respondent 4), and alleged tenant Abhimanyu Singh, Director of Eena Cable T.V. Network Pvt. Ltd. (Respondent 5, son of Respondent 4). (!) [25001116270009] (!)
Reliefs Sought by Petitioner: Quash order dated 17.2.2022 rejecting S.14 SARFAESI application; direct Respondent 2 (ADM) to pass fresh order handing over physical possession of mortgaged property (House No. 247, Jaipur House, Lohamandi Ward, Agra). [25001116270001][25001116270021]
Background of Proceedings: Bank initiated SARFAESI recovery for dues of Rs. 2,83,82,364/- against borrower M/s. Gayatri Development Well Pvt. Ltd.; property mortgaged by owner Roopa Singh; initial S.14 order dated 26.2.2018 allowed, set aside by DRT on 30.3.2019 for natural justice violation; fresh proceedings pending, accelerated by writ orders dated 24.8.2021 and 11.11.2021 directing conclusion within 30 days absent stay. (!) [25001116270010]
Impugned Order (17.2.2022): ADM rejected S.14 application due to status quo interim order dated 7.12.2020 in O.S. No. 1258/2020 by Civil Judge (Sr. Div.), Agra (Abhimanyu Singh v. Roopa Singh & others), where bank not impleaded; advised by District Govt. Counsel. (!) [25001116270009] (!)
Alleged Tenancy Claim: Respondent 5 claims tenancy via unregistered lease dated 1.8.2010 (11 months, Rs.500/month) from Roopa Singh to her husband Pawan Kumar Singh (authorizing sublet/mortgage), extended to 2039; later alleged registered lease dated 23.2.2019 from Pawan to Abhimanyu (29 years, Rs.2000/month); property leased before 2012 mortgage substitution. [25001116270006][25001116270008][25001116270011][25001116270012] (!) (!) (!) [25001116270013]
Court's Observations on Lease Documents: Unregistered 1.8.2010 lease hit by S.17(1)(b) & S.49 Registration Act (creates rights in immovable property like mortgage/sublet); cannot be evidence; 23.2.2019 lease post-dates mortgage/recovery; documents fraudulent/manipulated between family (mother-son-husband), concealed from bank/DRT/authorities. [25001116270015][25001116270016][25001116270036]
Civil Suit O.S. 1258/2020: Filed by Respondent 5 without impleading bank; interim status quo granted despite noting unregistered lease; suit barred by S.34 SARFAESI (no civil court jurisdiction over secured asset measures). (!) (!) [25001116270014][25001116270016][25001116270017] (!)
Interim Orders in Writ: Directions for counters/records; noted prima facie invalidity of injunction/unregistered lease; questioned Civil Judge's order ignoring Registration Act/SARFAESI bar. [25001116270002] (!) [25001116270003] (!) (!) [25001116270004] (!) [25001116270005]
Findings on Collusion/Fraud: Respondents 4 & 5 (mother-son) colluded; suit suppressed family ties, bank not party; no tenancy whisper in prior DRT proceedings by owner. [25001116270006][25001116270015] (!)
Outcome: Impugned order quashed; Respondent 2 directed to pass fresh S.14 order for physical possession within 30 days; O.S. 1258/2020 dismissed as barred by S.34 SARFAESI; writ allowed. [25001116270019]
JUDGMENT :
By the Court.-Heard Sri Sandeep Kumar Singh, learned counsel for the petitioner, Sri Nimai Das, learned Additional Chief Standing Counsel for the respondent Nos. 1 and 2 and Sri Vidyapati Tripathi, learned counsel for the respondent No. 5.
2. This writ petition has been filed by the petitioner - Bank praying for the following reliefs :
(b) issue a writ order or direction in the nature of MANDAMUS commanding the Respondent Nos. 2 to pass fresh order on the Bank's application dated 17.2.2018 in order to hand over the actual physical possession of the mortgaged property (specifically detailed in the body of the writ petition in Para No. 4) to the Petitioner Bank within a stipulated period;''
3. By order dated 6.7.2022, this Court directed the respondent No. 1 (State of U.P. through the District Magistrate, Agra), the respondent No. 2 (The Additional District Magistrate (Finance & Revenue), Agra and the respondent No. 5 (Abhimanyu Singh Director, Eena Cable T.V. Network Pvt. Ltd., Agra) to file counter-affidavit. The order dated 6.7.2022 is reproduced
Validity of unregistered lease agreements and the availability of alternative remedies under the SARFAESI Act
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 b....
A lease exceeding one year must be registered; oral agreements cannot create valid leases beyond that period, and civil courts lack jurisdiction in matters under the SARFAESI Act.
Point of Law : Nature of powers to be exercised by learned Chief Metropolitan Magistrate/learned District Magistrate, High Court in impugned judgment and order has rightly observed and held that powe....
The main legal point established in the judgment is that allegations of fraud and misrepresentation must be supported by compelling evidence, and contentions regarding the creation of a valid mortgag....
A secured creditor's rights under the SARFAESI Act are unaffected by a civil court's interim injunction binding only the parties in the suit.
Tenants must establish valid, registered tenancy agreements to protect their possession against secured creditors under the SARFAESI Act.
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