Tenants' rights are protected from secured creditors unless lease termination follows legal procedures; courts should avoid intervening in disputes where statutory remedies exist.

JUDGMENT

The case projected in this Writ Petition (Civil) is as follows:- That since the petitioner is a tenant at the time of creation of the mortgage, her tenancy right would not be affected by any of the measures taken under Section 13 (4) of the Securitisation Act. The leasehold right of the petitioner was not terminated in accordance with law and it could be terminated only by an order of eviction under the provisions of the Rent Control Act. The documents produced by the petitioner, prima facie, indicate that she was a tenant in the buildings even before the date of creation of the mortgage in favour of the bank. If the building is already let out to a tenant the secured creditor cannot override the lease without terminating the lease created by the landlord. A lease is the transfer of a right to enjoy immovable property in consideration of price, money or any other consideration. It is an incident of the proprietary right of the owner to create a lease in respect of the property or the building situated therein. On a creation of the lease, the lessor as well as the lessee have certain rights and liabilities against each other. A third party cannot interfere with the rights and liabilities of the lessor and lessee without any right conferred on the third party to do so. The provisions of the Securitisation Act do confer any such right on the secured creditor to trench upon the rights of the tenant inducted by the borrower/owner before the security interest is created. That therefore the petitioner cannot be evicted from the residential building on the basis of the proceedings as evidenced by Exts.P3 and P4. It is in the light of these factual averments and contentions, the petitioner has filed the instant Writ Petition (civil)

with the following prayers:-

“i. declare that the secured creditor having not obtained the leasehold right of the petitioner, petitioner is not liable to be evicted by the secured creditor without recourse to the due process of law.

ii. Issue a writ of in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents not to disturb the possession of the residential building situated in R.S.No.50/1 of Elavayoor Village, Kannur Taluk by the petitioner, being a tenant on the basis of tenancy created prior to the mortgage.”

2. Heard Sri. L. Rajesh Narayan Iyer, learned counsel appearing for the petitioner and Sri. J. Harikumar, learned counsel appearing for the respondents (Bank of India).

3. Sri. L. Rajesh Narayan Iyer, learned counsel appearing for the petitioner has made submissions in tune with the pleadings and materials on records in the writ petition that this Court would substantially exercise its discretionary jurisdiction under Article 226 of the Constitution of India in a matter like this and grant appropriate reliefs in the matter.

4. Per contra, Sri. J. Harikumar, learned standing counsel appearing for the respondent Bank of India would submit that the cases of this nature may not be entertained by this Court on merits in exercise of its discretionary jurisdiction conferred under Article 226 of the Constitution of India. It is pointed out that the respondent bank has a specific case that the so called lease in this case has been created long after the subject property has been mortgaged by the borrower with the respondent Bank of India and that the loan agreement has been entered into between the respondent Bank of India and the borrower on 26.11.2015 in respect of the above said housing loan and the mortgage has also been duly created thereby. That Ext.P1 is not even agreement in stamp paper, but it is only a receipt, wherein there is a typed date of 7.11.2015 created only for the purpose of showing as if the so called lease agreement was in force even before the creation of the mortgage on 26.11.2015. That in a case of this nature, it will be really hazardous for this Court in exercise of the powers under Article 226 of the Constitution of India to enter i