Shabbir Hussain & Ors. vs Bank of Maharashtra & Ors.

JUSTICE R.D. KHARE, CHAIRPERSON

The present appeal has been preferred under section 20 of the Recovery of Debts & Bankruptcy Act, 1993 (hereinafter referred to as the "RDB Act") against in interim order dated 15.04.2024, whereby the Stay Application No. 2095/2024 dated 01.04.2024 filed by the appellants has been rejected by the Tribunal below.

Brief facts of the matter are that the appellants are the tenants of the property in dispute and they are stated to be in possession of the same for the last more than 35 years.

It appears that a financial assistance was granted by the Bank to one M/s Nav Bharat Press Pvt. Ltd. and its one Director namely Shri Prafull Kumar Maheshwari had created equitable mortgage over his property in question by depositing original title deed with the Bank on 12.04.2004. On making default in repayment of the loan, the appellant-bank filed an O.A. No. 135/2009 against the said firm for a sum of Rs. 24,93,08,875.73/- along with interest, which was decreed on 05.08.2011 and recovery certificate was issued for the same, which was subsequently registered as OAEX No. 156/2011 before the Recovery Officer. In the said proceedings, the Recovery Officer vide order dated 29.02.2024 directed the defendants to hand over the possession of the subject property to the appointed receiver as per order dated 17.10.2023. The said order was challenged by the appellants before the Tribunal below by filing Appeal No. 08/2024 along with interim application. The Tribunal below vide order impugned has rejected the interim application filed by the appellants. Being aggrieved by the said order, the present appeal has been filed by the appellants.

Learned counsel for the appellants submitted that the Tribunal below has passed the impugned order in violation of orders dated 29.11.2023 and 07.03.2024 passed by this Appellate Tribunal. It was further contended that they are in possession of the property in question for more than 35 years. It was also contended that the respondent no. 2-Bank filed an application before the respondent no. 5-Recovery Officer for taking physical possession of the property in question, which was allowed vide order dated 26.04.2024 directing the respondent no. 3 to take over the physical possession of the said property and thereafter, the respondent no. 3 affixed a notice dated 30.04.2024 fixing the date of 06.05.2024 for the said purpose. It was further contended that the appellants filed another application before the Recovery Officer for granting 15 days time for obtaining interim relief from this Appellate Tribunal, but the same was rejected vide order dated 06.05.2024 directing the respondent no. 3 to dispossess the appellants, but the same could not be complied with due to non-availability of police force. It was further contended that these acts of the respondents no. 2 to 5 show that they have no respect to the orders dated 29.11.2023 and 07.03.2024 passed by this Appellate Tribunal. It was, therefore, prayed that the order impugned may be set aside and the appeal filed by the appellant may be allowed.

Learned counsel for the respondent-Bank submitted that the Tribunal below has not committed any error in declining the stay of operation of the order dated 29.02.2024 passed by the Recovery Officer, because the order of Status quo passed by this Tribunal on 29.11.2023 was in respect of the order dated 03.11.2023 passed in S.A. No. 121/2017 and there was no stay on the execution of order in the recovery proceedings before the Recovery Officer. It was further contended that the order dated 07.03.2024 passed by this Tribunal was in connection with continuation of status quo order passed on 29.11.2023. It was also contended that the appellants are illegal occupants and not bonafide tenants. It was further contended that the contention of the appellants that they are tenants for more than 35 years in the property in question is incorrect because they have not filed any registered instrument, which may establish their so long tenancy and in absence of the same, they are not entitled for possession of the property in question. It was also contended that no registered lease deed was executed between the appellants and owner/mortgager of the property, hence they are nothing but illegal occupants. It was further contended that the Recovery Officer cannot go beyond the decree, as the O.A. was decreed after hearing both the parties and there was not even a whisper of any kind of tenancy. It was further contended that the property was originally attached by the Recovery officer vide order dated 17.02.2014 and finally attached vide order dated 06.05.2015 and these orders were never challenged before any higher forum, therefore, they attained finality. It was, therefore, prayed that the appeal filed by the appellant may be dismissed with heavy costs.

Having heard the learned counsels for the parties and considering the material available on record, undisputedly, the original application was filed by the bank, which was decreed in toto and the recovery certificate was issued and the same was instituted before the Recovery Officer.

The admitted fact is that the order dated 29.11.2023 was passed by this Appellate Tribunal in Appeal Dy. No. 1477/2023, which was filed challenging the order dated 03.11.2023 passed in S.A. No. 121/2017 preferred by the appellants u/s 17 of the SARFAESI Act and not in OAEX No. 156/2011 arising out of O.A. No. 135/2009, thus the contention of the appellants that the respondents no. 4 & 5 had no respect to the order dated 29.11.2023 and its continuation order dated 07.03.2024 passed by this Tribunal is not tenable.

The main question in the present case is, as to whether the appellants are entitled for any interim relief or not?

While going through the record of the case, it is found that the appellants have not filed any copy of lease deed/agreement of tenancy and they have only filed the rent receipt dated 10.04.2009, copy of which has been placed at page no. 66 of another appeal. There are another rent receipts dated 18.06.2010 and 28.05.2012, copies of which have been placed at page no. 67 and 68 of the another appeal. Perusal of these receipts reveals that these receipts are in the different form and signed by different persons, therefore, these receipts cannot be taken into consideration for establishing the tenancy of the appellants. If any person claims that he is entitled for possession of the secured asset for any term exceeding one year from the date of lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. If he fails to do so and relies on an unregistered instrument or oral agreement, he cannot be held to be entitled for possession of the secured asset. In the present case, the appellants have neither filed any registered instrument nor any oral agreement, which may show the period of the tenancy created by the owner in favour of the appellants/tenants. Thus the appellants cannot be said to be the statutory tenants in the premises in dispute, but it can be said that the borrower has set up these appellants to frustrate the recovery of the Bank. Thus the Tribunal below has rightly declined to the interim relief sought by the appellants vide order impugned.

In view of the discussions as recorded above, there is no infirmity or illegality in the order impugned, hence the same does not call for any interference by this Tribunal. Consequently, the appeal filed by the appellant is dismissed with no order as to costs.

A copy of this judgment be forwarded to the parties as well as the DRT concerned and be also uploaded on the e- DRT portal.