PREM GUPTA @ PREM KUMAR Vs. BANK OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner has sought a writ of mandamus directing respondent No. 1 to put the petitioner back into possession of the shop, the possession of which has been taken over by the Bank in terms of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter to be referred as "the Act").

(2.) IT is the case of the petitioner that he is a tenant on the ground floor of property bearing Municipal No. B-II 1543/53 whereas the remaining four storied building is in possession of the present owners. It is the case of the petitioner that he was inducted as a tenant by Mohinder Singh on 19.11.1996 at a monthly rent of Rs. 600/- vide rent note, a copy of which has been appended as Annexure P-1. By virtue of registered Will dated 27.06.1994, Shop No. 53 in possession of the petitioner as a tenant was bequeathed by Mohinder Singh in favour of his grand sons Vikas and Satwinder Singh. Said Mohinder Singh died on 22.06.1997. Thereafter, the petitioner started paying rent to Vikas. Photocopies of the receipts have been appended as Annexure P-2. On 20.5.1998, Vikas and Satwinder Singh sold the property to Sat Pal Abhlish on the basis of agreement to sell dated 6.1.1998. The said agreement stipulates possession of the petitioner as tenant in the said shop. The offer of the petitioner to pay rent to Sat Pal Abhlish was not accepted. Therefore, the cheques sent to Sat Pal Abhlish and refused by him are with the petitioner. Sat Pal Abhlish started hotel named as M/s Hotel Shampion. It has come on record that the property was mortgaged on 30.04.1999 when Memorandum of Record of Equitable Mortgage and Mortgagor's Letter of Confirmation of Equitable Mortgage were executed. Since the borrower failed to make the payment of the due amount, the bank had taken possession of shop portion from the petitioner on 2.6.2005 and sealed the same with lock and key. It is the case of the petitioner that no notice was given to the petitioner before possession was taken and that the petitioner was not even allowed to remove his goods which were worth more than Rs. 2,50,000/-. It is pointed out by the petitioner that although loan of Rs. 7 lacs had been taken by respondent No. 2 for running of the hotel but the officials of the bank had sealed only the shop of the petitioner as tenant and rest of the four storied building where respondent No. 2 is running hotel has not been touched.

(3.) IN the written statement on behalf of the bank, it has been stated that no right of the petitioner is infringed and that the petitioner has not suffered any loss. Still further, the petitioner has a remedy under section 17 of the Act. Still further, it has been pointed out that the possession of the mortgaged property was taken over by the bank from respondent No. 2 only and that the petitioner has not produced any document in support of the tenancy at the time of taking over of possession nor the petitioner alleged at any time that he was in possession at that time. Still further, it was alleged that rent note Annexure P-1, cannot be taken into consideration being unregistered document. On merits, it has been pleaded that Sat Pal Abhlish purchased the property vide sale deed dated 19.05.1998 and mortgaged the same on 30.04.1999. After the death of Satpal Abhlish on 2.1.2002, his legal representatives automatically became mortgagors. Still further, no objection was received even when notice under Sections 13(2) and 14(4) of the Act was published in the columns of newspaper "Ludhiana Newsline" supplement of Indian Express and "Dainik Tribune". It has been further pleaded that the conduct of the petitioner does not support his action as he has not filed any objection to the notice under Section 13(4) of the Act nor he approached the Debt Recovery Tribunal or this Court till the time the bank took possession in May, 2005.