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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Heard the Learned Counsel for Appellant. Despite service none is present for the Respondent. Perused the record.
Instant appeal is preferred against an order dated 20th February, 2024 passed by Learned DRT-III, Kolkata dismissing I.A. 357 of 2024. Learned Counsel for Appellant would submit that the Appellant is a tenant in the secured asset who is a Chartered Accountant. It is submitted that he is tenant since 2003 through an unregistered agreement. This agreement was renewed in 2018 for another 15 years. It is further submitted that registered agreement is not required in West Bengal for creating a tenancy. It is further submitted that possession of the Appellant’s chamber is taken by the Respondents. Chief Judicial Magistrate’s order dated 6.10.2023 is bad in law.
It appears that a SARFAESI Application was filed by the Borrowers wherein the Appellant herein filed an intervention application stating that he is a tenant since 2003 which was renewed for 15 years on 30th June, 2018. He is paying Rs.2,500.00 per month as rent. An order under Section 14 of the SARFAESI Act dated 6.10.2023 was passed by Chief Judicial Magistrate wherein the mandatory provisions of Section 14 were complied. Applicant alleges himself to be an intending purchaser also.
Learned DRT dismissed the application holding that a tenancy agreement for more than a year should be a registered agreement. No approval of the Bank was obtained at the time of renewal of the tenancy agreement.
Section 13 sub section 13 of the SARFAESI Act reads as under :
“13. Enforcement of security interest:
(13) No borrower shall, after receipt of notice referred to in sub-section (2), transferred by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor.
No such power shall be exercised unless and until –
(a) Notice in writing requiring payment of the principal money has been served on the mortgagor or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or
(b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.”
No prior consent of the secured creditor was obtained at the time of renewal of the lease agreement of 30th June, 2018. Hence, the plea of the Appellant is barred by Section 13 (13) of the Act.
Initially a lease agreement was executed with effect from 1st July, 2003 for fifteen years on payment of Rs.1,500.00 as rent. Thereafter, it was renewed on a plain paper for fifteen years. No agreement was signed by the parties. This renewal agreement was neither registered nor the rent is mentioned. Appellant herein cannot take advantage of such a renewal. Further Appellant himself has admitted in the report submitted to the Officer-in-Charge, Burtalla Police Station, Kolkata that he has an oral agreement for purchasing the property which is not alleged in the application. In the Gmail dated 12th June, 2023 it is communicated by the Appellant that he would be purchasing the ground floor through an oral agreement. He has already paid an advance of Rs.9.00 lac but no written consent of the secured creditor was obtained.
As far as challenge to the order passed under Section 14 of the Act is concerned, Appellant has no locus standi to challenge the same. Further on perusal of the order passed under Section 14 of the Act would reveal that compliance of the mandatory provisions of Section 14 are made by the Chief Judicial Magistrate in view of the law laid down by the Hon’ble Apex Court in R.D. Jain & Company -vs- Capital First Limited & Others [(2003) 1 SCC 675].
On the basis of the discussion made above, I am of the considered view that the Learned DRT has not committed any illegality in the impugned order. Accordingly, Misc. Appeal is liable to be dismissed.
ORDERED
The Misc. Appeal is dismissed in limini at the admission stage.
Copy of the order be supplied to Appellant and the Respondent Bank and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order signed, dated and pronounced in open Court.