SANJEEV BANSAL Vs. OMAN INTERNATIONAL BANK SAOG

JUDGEMENT

(1.) The petitioner in the present writ petition has assailed the order dated 25th July, 2006 passed by the learned Debt Recovery Appellate Tribunal in Miscellaneous Appeal No.169/2005. The principal contention raised by the petitioner is that he being a tenant and in physical possession of the entire first floor of the property bearing No. H-36, South Extension Part-I, New Delhi- 110049 by virtue of lease deed dated 15th May, 2001, duly executed by the principal borrower and mortgagor of the property M/s. Eupharma Laboratories Ltd., is fully protected under the provisions of Delhi Rent Control Act and cannot be dispossessed without taking recourse to the provisions of the Delhi Rent Control Act. We need not narrate the detailed facts. But it is suffice to state that M/s. Eupharma Laboratories Ltd. who is a principal borrower had availed some loans from Oman International Bank after mortgaging the said flat in question in favour of the bank by executing a memorandum of mortgage dated 4th February, 1999. On the failure of the borrower to pay back the loan, the bank had invoked the relevant provisions of SRFAESI Act and approached the learned CMM, Delhi so as to seek directions for taking over the possession of the said mortgaged property. The present petitioner had filed an appeal under Section 17(1) of the SRFAESI Act before the Debt Recovery Tribunal so as to seek restraint order against the bank from taking over the physical possession of the secured asset i.e. the mortgaged property bearing No. H-36, Ist Floor (entire), NDSE Part-I, New Delhi. The Debt Recovery Tribunal dismissed the appeal of the petitioner vide order dated 28th July, 2005. Being aggrieved by the said order of the DRT, the petitioner challenged the same before the Debt Recovery Appellate Tribunal and vide order dated 25th July, 2006, the Debt Recovery Appellate Tribunal did not find any merit in the appeal of the petitioner and the same was dismissed.

(2.) The petitioner has laid much emphasis on his contention that the provisions of the DRC Act will have over-ridding effect on the provision of Transfer of Property Act and he being a tenant enjoys the protection against any sort of eviction under Section 14 of the Delhi Rent Control Act which starts with non-obstante clause. It would be worthwhile to reproduce the relevant portion of Section 14(1) of the Delhi Rent Control Act.

(3.) Even a cursory glance over the said provision would clearly show that the protection afforded to a tenant is from the landlord of the premises and the landlord of the premises cannot recover possession from the tenant unless he takes recourse to any of the grounds as available to him under Section 14(1) of the Delhi Rent Control Act and the right of the tenant is fully protected notwithstanding anything contrary contained in any other law or contract. In the present case, it is a mortgagee who has enforced his right under the SRFAESI Act against the principal borrower who had mortgaged the said property in question by duly and validly executing the memorandum of mortgage in favour of the mortgagor. There is no denial of the fact that the said unregistered lease deed on a insufficient stamp paper was executed much later than the deed of mortgage.