1. This S.A. was filed on 31.10.2017 and defects were communicated to the learned counsel for Applicant.
2. Defects were removed and so S.A. was registered on 22.11.2017.
3. Reply to the S.A. was not filed by Respondent No. 3 till the hearing of final argument and he was not represented through any counsel since
20.01.2018, so it is clear that Respondent No. 3 have nothing to say.
4. Reply on behalf of Respondents No. 1 & 2 was also not filed till 24.09.2019 despite giving various opportunities and so reply was closed.
5. An I.A. No. 36/2019 filed by Respondent No. 1 & 2 with a prayer to take the reply on record, which was allowed by this Tribunal.
6. The Applicant clims himself as a Tenant at the property â€" House No. 1-E, Shiv Park Colony, Udaipur, owned by Respondent No. 3 Sh. Mothi Lal
Dangi. This property was mortgaged by Respondent No. 3 with the Respondents No. 1 & 2 as he availed credit facility from Respondents No. 1 & 2.
7. As per Applicant there is a Rent Agreement dt. 01.06.2010 for a period of 11 month and after that it was extended on account of oral agreement &
mutual consent.
8. The Rent Agreement admittedly is not Registered and the stamp paper was purchased by Respondent No. 3 on 18.05.2005 i.e. before five years of
the date of agreement but why, is not clear.
9. The Applicant challenged the possession notice dt. 21.10.2017 and prayed that the Respondents may be directed to not to take any symbolic &
physical possession of the property in question as it is rented to him.
10. As per reply filed by Respondents No. 1 & 2, the Applicant failed to establish a cause of action or act or omission on the part of the Respondent,
which can be declared in contravention of the SARFAESI Act.
11. As per reply, physical possession of the subject property was taken on 01.05.2017 and the S.A. was filed on 30.10.2017, so it is time barred.
12. As the Applicant is a Tenant so in the reply, there is a mention of two Judgement of Hon’ble Apex Court and it has been decided by
Hon’ble Apex Court in the matter of R V Bhupal Prasad Vs State of Andhra Pradesh & Ors. (1996 AIR 140) has held that â€
“Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of ther
term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the
extinction of a lawful title. There is little difference between him and a trespasser.â€
Moreover, the Hon’ble Apex Court in the matter of Bajrang Shyam Sunder Agarwal Vs Central Bank of India & Anr. (Criminal Appeal No. 1371
of 2019) has rightly held that â€
“If any of the tenants claim that he is entitled to possession of a secured asset for a term of more than a year, it has to be supported by
the execution of a registered instrument. In the absence of a registered instrument, if the tenant relies on an unregistered instrument or an
oral agreement accompanied by delivery of possession, the tenant is not entitled to possession of the secured assetâ€
“The operation of the Rent Act cannot be extended to a „tenant-in-sufferance‟ vis-a-vis the SARFAESI Act, due to the operation of
Section 13(2) read with Section 13(13) of the SARFAESI Act. A contrary interpretation would violate the intention of the legislature to
provide for Section 13(13), which has a valuable role in making the SARFAESI Act a self executor instrument for debt recovery. Moreover,
such an interpretation would also violate the mandate of Section 35, SARFAESI Act which is couched in broad terms.â€
13. So, after having gone through entire facts, I am of the considered view that the S.A. is time barred, filed by an Applicant who do not have locus to
file this S.A., Rent Agreement is not Registered, filed in connivance with the landlord, Respondent No. 3 who knowingfully remained absent in the
proceedings of this S.A., no irregularity/illegality is pointed out by the Applicant in the actions taken by Respondents No. 1 & 2, S.A. filed by
Respondent No. 3 has already been dismissed and this S.A. is gross abuse of process of law and is liable to be dismissed.
14. Copy of the order be given free to all the concerned parties. File be placed before the Registrar for compliance. After compliance file be
consigned to record.
