R.Saravanan v. United Bank Of India, Ho: 11,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.7.2016
CORAM
THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH AND THE HON'BLE MR.JUSTICE M.V.MURALIDARAN Writ Petition Nos.36334 of 2015 & 1326 of 2016 R.Saravanan .. Petitioner in both WPs.
Vs.
1. United Bank of India Head Office at No.11, Hemant Basu Sarani Kolkatta 700 001 Branch Office No.141, New No.66 Kodambakkam High Road Chennai 600 034, rep. by its Chief Manager/Authorised Officer V.P.Arunagiri Chief Manager - Credit Southern Regional Office No.184/192, Ramakrishna Math Road Chennai 600 028.
2. M/s. Rayan & Rayan rep. by its Proprietor T.N.Kandhavel No.78, Triplicane High Road Chennai 600 005.
3. T.N.Kandhavel
4. N.Manomani
5. R.Vinayagam
6. M/s. Rahmania Hardwares (Tenant) rep. by its Proprietor Abdul Rauf Shop Premises No.1, Ground Floor
7. M/s. Shibish Snacks Bar (Tenant) rep. by its Proprietor Chandran Shop Premises No.2, Ground Floor
8. M/s. Silver Star Communication (Tenant) rep. by its Proprietor Riyaz Ahamed Shop Premises No.3, Ground Floor
9. M/s. Bishmillah Traders (Tenant) rep. by its Proprietor M.H.Nasar Shop Premises No.4, Ground Floor 10.M/s. Nellai Sweets and Cool Drinks (Tenant) rep. by its Proprietor Vishwanathan Shop Premises No.5, Ground Floor 11.M/s. Vignesh Printers (Tenant) rep. by its Proprietor R.Ravi Shop Premises No.5, Ground Floor 12.M/s. K.S.Process (Tenant) rep. by its Proprietor Saravanan Shop Premises No.2, First Floor 13.M/s. N.R.Graphics (Tenant) rep. by its Proprietor Nagarajan Shop Premises No.3, First Floor 14.Saseetharan [R6 to R14 all at New No.325/2, Old Nos.695 to 698, Triplicane High Road, Chennai 5.] 15.The General Manager Bharti Airtel Limited Bharti Cresent, No.1, Nelson Mandela Road Vasanth Kunj, Phase II New Delhi 110 070.
16. Mohamed Asraf Khan ..
Respondents in both WPs [R5 to R15 deleted vide order dated 16.11.2015 made in WP No.36334/15] ----- Petitions under Article 226 of the Constitution of India praying for (i) a writ of Certiorarified Mandamus calling for the records on teh file of the learned Chief Metropolitan Magistrate, Egmore, Madras, relating to the order dated 07.02.2014 made in Crl.M.P.No.5542 of 2013 and quash the same and to direct restoration of possession to the petitioner; and (ii) a writ of Certiorari calling for the records of the learned Chief Metropolitan Magistrate, Allikulam, Chennai relating to the order dated 25.8.2015 made in Crl.M.P.No.2095 of 2015 in Crl.M.P.No.5542 of 2013 and quash the same. ----- For Petitioner : Mr.S.R.Rajagopal
For Respondent-1 : Mr.F.B.Benjamin George For Respondent-2 : Mr.Antony Lx.Selvam For Respondent-16 : Mr.K.M.M.Asan Ali Khan ------
O R D E R
(Made by Huluvadi G.Ramesh,J) The petitioner has come up with the above writ petitions seeking to quash the order of the learned Chief Metropolitan Magistrate, Egmore and to restore him possession of the shop.
2. According to the petitioner, he is a tenant under one Namasivayam in respect of Shop No.4, 1st Floor, New No.325/2, Old Nos.695-698, New No.78, Triplicane High Road, Chennai 600 005, since 2003 and is carrying on business under the name and style of Shun Xerox. After the demise of Namasivayam, the petitioner continues to be a tenant under his son, namely the third respondent. On 15.10.2015, the premises was inspected by the Advocate Commissioner appointed by the learned Chief Metropolitan Magistrate, Egmore, by order dated 07.02.2014 made in Crl.M.P.No.5542 of 2013, for taking physical possession, without giving any notice or opportunity to the petitioner. Hence, the petitioner has come up with W.P.No.36334 of 2015.
3. Thereafter, the petitioner filed Crl.M.P.Nos.2094 and 2095 of 2015 to stay the operation of the warrant of the Advocate Commissioner and to set aside the order dated 07.02.2014, on the ground no notice was served on him and the same was dismissed by order dated 28.5.2015. Hence, the petitioner has come up with W.P.No.1326 of 2016.
4. The learned counsel for the petitioner contended the petitioner is a lawful tenant since 2003 and he is regular in the payment of rent and that taking physical possession of the premises by the Advocate Commissioner, as per Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, without affording an opportunity to the petitioner is illegal and therefore, the impugned order has to be quashed and that the petitioner should be restored with possession of the shop.
5. The learned counsel for the first respondent contended that the second respondent, a proprietary concern of the third respondent, availed loan from the first respondent by mortgaging the property in question on 24.3.2005 and since the second respondent defaulted in the payment of loan amount, the property mortgaged was sold to the 16th respondent in an auction under SARFAESI Act. He further contended that though the petitioner claims to be tenant under the third respondent, he did not
produce any valid document to prove his tenancy, except an unregistered lease deed, which expired prior to the date of mortgage and therefore, the petitioner cannot claim restoration of his tenancy on the ground that he was not given an opportunity. He submitted that the first respondent, being a secured creditor, has taken symbolic possession of the property on 30.10.2007 itself by following due procedure laid down under the SARFAESI Act
6. The learned counsel appearing for the auction purchaser contended that property in question was purchased by the auction purchaser in the auction conducted on 31.3.2012 and the sale certificate granted on 09.6.2012 was registered in favour of him on 09.7.2012 and that the petitioner, being aware of the fact that the auction purchaser has taken physical possession of the property, did not choose to pay the rent even after the dismissal of his petition and therefore, he contended that the petitioner's plea of restoring his tenancy should not be considered.
7. Heard the learned counsel appearing for both sides.
8. Admittedly, the first respondent is the secured creditor and it has taken possession of the secured asset as early as 2007. The first respondent sold the property under the SARFAESI Act and the 16th respondent has purchased it. Even after the auction purchaser has taken possession of the premises, the petitioner had not chosen to pay the rent. Therefore, the contention of the petitioner that he should be restored his possession as he is regular in paying the rent, has to be rejected.
9. Further, from the averments stated in the counter, it is clear that the petitioner has been granted several opportunities by the Chief Metropolitan Magistrate, Egmore, to produce lease deed or agreement to prove his lawful tenancy and therefore, the petitioner cannot contend now that he has not been granted any opportunity to prove his tenancy. On the other hand, the failure of the petitioner to produce any lease deed or agreement would prove that the petitioner was not in lawful tenancy.
10. Considering the facts and circumstances of the case, we are of the considered opinion that the writ petitions are liable to be dismissed.
11. At this juncture, the learned counsel for the petitioner requested to consider the case of the petitioner that the petitioner is running the shop since 2003 and it would be difficult for him to locate a shop immediately for running his business, and therefore, seeks one year time to vacate and hand over vacant possession to the auction purchaser.
12. In view of the above, we are of the view that reasonable time would be the only remedy to the petitioner to find out an alternative accommodation, in order to vacate the premises. Hence, we dispose of the writ petitions as under: (i) the petitioner is permitted to run his shop till 31.3.2017, on condition that he should pay the arrears as on date, on or before 31.7.2016;
(ii) any amount paid by the petitioner towards advance, shall be adjusted in the arrears amount;
(iii) the petitioner shall pay a sum of Rs.8,000/- per month towards enhanced rent from 01.7.2016, instead of Rs.6,500/- per month;
(iv) if the shop in question was under lock and key for the months of October and November, rent for the said months shall not be collected; and (v) the petitioner shall vacate and hand over vacant possession to the auction purchaser on or before 31.3.2017. There shall be no order as to costs. Consequently, M.P.No.1 of 2015 and WMP No.1089 of 2016 are closed.
Sd/- Asst.Registrar () /true copy/ Sub Asst. Registrar kpl TO
1. United Bank of India Head Office at No.11, Hemant Basu Sarani Kolkatta 700 001 Branch Office No.141, New No.66 Kodambakkam High Road Chennai 600 034, 2.The General Manager Bharti Airtel Limited Bharti Cresent, No.1, Nelson Mandela Road Vasanth Kunj, Phase II New Delhi 110 070.
+2 cc to Mr.R.B.Benjamin George, Advocate sr.37327,37326 +4 CC to S.R.Rajagopal,Advocate sr.37164,37165 +2 cc to Mr.Antony Lx.Selvam Advocate sr,37082,37083 UG(CO) CP 23/07/2016 WP.NOS.36334 of 2015 & 1326 of 2016.