A mortgagor's express waiver of rights under the Transfer of Property Act negates any subsequent lease agreements regarding mortgaged property.

J U D G M E N T

The petitioners have filed the above writ petitions on the contention that they are lessees in occupation of the residential buildings, mortgaged to the respondent Bank by the 5th respondent, the original borrower.

2. Both the petitioners contend that the petitioners were put in possession of the separate buildings as per lease deeds executed on 15.02.2013 produced as Ext.P1 in W.P.(C) No.35500 of 2014 and Ext.P2 in W.P.(C) No.10042 of 2015. There was also a renewal of such lease, respectively as per Exts.P2 and P3 in the respective writ petitions. Further, it is contended that there was a suit filed by the lessees as O.S Nos.59 and 60 of 2015, in which, there was a compromise entered into before the Taluk Legal Services Committee, which is produced as Ext.P12 in W.P.(C) No.35500 of 2014. A similar compromise is said to have been entered into in the other suit also. It is based on the said orders of compromise that the petitioners have been granted an interim stay in the writ petitions. The compromise was also to the effect that the lease would be continued for two years.

3. The learned Counsel appearing for the petitioners argue that Section 13(2) notice was issued on 03.12.2014 and even prior to that on 15.02.2013, both the petitioners were put in occupation as lessees. It is also contended that the petitioners had approached the Chief Judicial Magistrate Court, for an adjudication, as the law stood at the time of issuance of Section 13(2) notice. When the Bank moved under Section 13 (4) before the CJM for taking physical possession of the mortgaged property the petitioners on threat of eviction, had also filed a suit, is the contention taken. The suit however only impleaded the owner and not the Bank. It is the submission of the Bank that it was a collusive affairs to pre-empt possession of the property.

4. The petitioners had approached this Court, while the matter was pending before the CJM and obtained an order of stay. As of now, by an amendment made on 16.09.2016, a tenants could also agitate their contentions against the physical possession attempted under Section 13(4), before the Debt Recovery Tribunal (DRT) as is provided under Section 17 (4A) of the Act. In such circumstance, if this Court is not inclined to allow the writ petitions, it is prayed that the petitioners be permitted to approach the DRT.

5. The learned Standing Counsel appearing for the respondent Bank however would strongly oppose the prayer to leave any liberty, especially since, the petitioners had chosen to approach this Court, even when a proceeding was pending before the CJM and had also not moved the DRT, despite an amendment having brought in on 16.09.2016. The learned Counsel would also raise serious doubts on the genuineness of the documents produced before this Court, which has been addressed in the counter affidavit filed itself.

6. A counter affidavit has been filed on 17.08.2015 contending that there was no tenant at the time of mortgage and it is also contended that the lease deeds were fraudulent and inadequately stamped and is also an unregistered document. It has been specifically alleged that the lease deeds are a result of a collusive fraudulent action by the petitioners and the 5th respondent, the original borrower.

7. As was pointed out by the learned Counsel for the Bank, the lease deeds are executed on identical days in the year 2013-14 and are in two stamp papers consecutively numbered, which by itself according to this Court does not raise any doubt as to the genuineness of the document. However, it is to be noticed that in neither of the stamp papers, the date of issuance is seen. The petitioners contend that the original lease deeds are in possession of the owner. The original borrower though impleaded and served with notice has not appeared before this Court. A suspicion having been raised as to the genuineness of the deeds definitely the petitioners had a duty to refute the contention raised and substantiate