Case Law Details
Hemraj Ratnakar Salian Vs. HDFC Bank Ltd. & Ors. (Supreme Court)
In the present case, first of all there is a serious doubt as to the bona fide of the tenant, as there is no good or sufficient evidence to establish the tenancy of the appellant. According to the appellant, he is a tenant of the Secured Asset from 12.06.2012. However, the documents produced in support of his claim are xerox copies of the rent receipts and the first xerox copy of the rent receipt is of 12.05.2013 which is after the date of creation of the mortgage. It is pertinent to note here that the Borrowers have not claimed that any tenant is staying at the Secured Asset. At the time of grant of facility, third party valuers had also confirmed that the Borrowers were staying at the Secured Asset. Be that as it may. The appellant has pleaded tenancy from 12.06.2012 to 17.12.2018. This is not supported by any registered instrument. Further, even according to the appellant, he is a “tenant in sufferance”, therefore, he is not entitled to any protection of the Rent Act. Secondly, even if the tenancy has been claimed to be renewed in terms of Section 13(13) of the SARFAESI Act, the Borrower would be required to seek consent of the secured creditor for transfer of the Secured Asset by way of sale, lease or otherwise, after issuance of the notice under Section 13(2) of the SARFAESI Act and, admittedly, no such consent has been sought by the Borrower in the present case.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
Leave granted.
2. These appeals are directed against the Orders dated 30.12.2015 and 06.01.2016 in Case C.C. No.381/SA/2014 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai, rejecting the Application (Exh.8) filed by the appellant herein for restraining HDFC Bank, the first respondent herein, from taking possession of the property in the appellant’s possession.
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