CHITRA VENKATARAMAN Vs. R KARUPPIAH

JUDGEMENT

(1.) The Writ Petition is filed for writ of Mandamus forbearing respondents 3 to 5 from interfering with the petitioner's lawful possession and enjoyment of the property situated at Sruthilaya Apartments, Flat No.F-1, First Floor, Old Door No.32 and 32-A (New No.37), Bharatheeswarar Colony, 4th Street, Kodambakkam, Chennai-24.

(2.) The petitioner is a lessee under the first respondent/landlord. It is stated that the first respondent executed a lease deed dated 01.04.2008 in favour of the petitioner after receiving a sum of Rs.6,00,000/= as consideration for leasing out of the above flat for a period of 11 months. It is stated that the lease was subsequently renewed on 12.11.2011 for a further period of 11 months and the same was in force as on the date of the filing of the writ petition i.e., February 2012. The petitioner states that the Officials of the third respondent-Indian Bank called upon the petitioner to vacate the premises on account of Debt Recovery Proceedings against the first respondent for recovery of a sum of Rs.13,80,030/- with interest. Accordingly, the third respondent-Indian Bank issued possesion notice on 05.02.2012 under Section 13(4) of the Securitization Act, 2002 and they disturbed the physical possession of the property. According to the petitioner, the action taken by the Bank is illegal. In support of the claim, the lessee/petitioner submits that the third respondent-Indian Bank has no right to take action against the petitioner and learned counsel for the petitioner placed reliance upon this Court decision in the case of Indian Bank, Adyar Branch rep. By its Authorised Officer/Assistant General Manager Vs. Nippon Enterprises South, Rep. By its Partner, Mr.Chetan Acharya and others, 2011 2 CTC 474 stating that in respect of lease hold property, the Bank cannot straight away dispossess the petitioner for taking recourse of the recovery proceedings against the landlord. In the light of the settled position of the law, learned counsel submits that the attempt of the Bank to dispossess the petitioner is not valid in law.

(3.) The fifth respondent-Dena Bank as well as third respondent-Indian Bank have filed counter affidavits. It is seen from the averments in the counter affidavit filed by the fifth respondent that the 1st and 2nd respondent availed loan facility from the said respondent. The Bank disbursed the loan of Rs.14 Lakhs on 09.03.2005 and the first respondent depostied the original title deeds conveying the specific undivided share of land in proportionate with the flat. It is stated that the equitable mortgage was created by deposit of title deeds. While equitable mortgage was created by the 1st and 2nd respondent, the builder of the Flat had entered into various agreements and had obtained housing loan from different banks for the same property. The fifth respondent-Dena Bank filed original application in O.A.No.19 of 2009 for recovery of a sum of Rs.18,18,156/- along with interest at the rate of 8% per annum. The Original Application was ordered. When the Bank went to take possession, the petitioner resisted it. The fifth respondent submits that there is no indication regarding valid lease. It is further pointed out that under Clause 10 of the said documents, it is clearly stated that it is the responsibility of the first respondent, if any dispute arising therein, to set right the same. In any event, considering the deposit of title deeds given as well as disbursement of loan dated 09.03.2005, the claim of the petitioner cannot be entertained.