Dismissed

Anila Santaram Mohinekar v. Bharat Cooperative Bank Mumbai Limited

DRAT23 Sept 2024IA/84/2024

Case brief

AI extract

What is this about?

The appeals tribunal dismissed an appeal against the dismissal of a Securitisation Application. It held that the appellant failed to prove tenancy rights due to lack of rent receipts for her husband and the prior surrender of tenancy rights by the last named tenant.

What did the court decide?

The appeal was dismissed, affirming the Debts Recovery Tribunal order dismissing the Securitisation Application.

Anila Santaram Mohinekar versus Bharat Cooperative Bank… — Banking and Recovery | DRAT (2024)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson

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Appeal No. 11/2024

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Between

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Anila Santaram Mohinekar … Appellant/s

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V/s.

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Bharat Co-operative Bank Mumbai Ltd. …Respondent/s Mr. M.A. Adenwala, Advocate for Appellant. Ms. Rajesh Nagory, i/b Ms Sanjana Ghogare, Advocate for Respondent.

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-: Order dated: 23/09/2024: -

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The appellant who claims to be a tenant in flat No. 213, Shalimar Cooperative Housing Society (Shalimar Building), Lalan Nigarm Road, Colaba Market, Mumbai-400005 (the secured property) is aggrieved by the dismissal of her Securitisation Application (S.A.) No. 10 of 2019 by the Debts Recovery Tribunal-I, Mumbai (D.R.T.) vide order dated 29.11.2023.

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The secured property belonged to a person named Porbanderwala. According to the appellant, her family consisting of her husband and her brothers-in-law were tenants in a room situated in a building called a Dhobi Chawl. They were vacated from there and the subject flat was allotted to them as per a letter by the aforesaid Porbanderwala. Before this allotment in favour of the appellant and her family, the tenanted flat was allotted to her brother-in-law Prabhu Bailappa Mohinekar who was paying rent for the premises since 195152. After the death of Prabhu Bailappa, who was unmarried, his brothers Sharavan and the appellant’s husband Shantaram and their

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families continued to reside in the tenanted premises. Rent was continued to be paid by them and rent receipts were issued in the name of Sharavan Bailappa. The appellant claims to have continued her residence on the premises as a legal heir of the late Prabhu Bailappa. Sharavan also died in 1982, and thereafter, rent receipts were issued in the name of his wife Devamma Sharavan Bailappa. The entire family of Sharavan and Shantaram consisting of their wives and children continued to reside in the flat. Shantaram, the husband of the appellant, died on 16.08.2001.

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It is alleged that behind the back of the appellant, the landlord Porbanderwala sold the flat to Sharnita Gautam Karunsagar, the granddaughter of Devamma Sharavan. The contention is that the tenancy right of the appellant in the property does not get extinguished by the purported sale in favour of Sharnita by the landlord. 4. After having allegedly purchased the flat, Sharnita mortgaged it to the respondent Bharat Co-operative Bank Ltd. and obtained the loan. The appellant never knew about the mortgage and had never consented to it. The repayment of the loan was defaulted, the account was classified as a non-performing asset (NPA) and measures were taken by the bank for recovery of the outstanding dues under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) proceeding against the subject flat as the secured property.

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The appellant contends that the purchase of the property by Sharnita, mortgaging it in favour of the bank and thereafter permitting the bank to proceed under the provisions of the SARFAESI Act were

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all intended to oust the appellant and her family from the tenant premises. Apprehending dispossession, the appellant and her son filed two suits SC Suit No. 92 of 2016 and SC Suit No. 2976 of 2015 before the Small Causes Court. The bank had obtained an order under Sec. 14 of the SARFAESI Act from the Court of the CMM to get physical possession of the subject flat. On coming to know about this, the appellant filed Mis. Application No. 1253/M/ 2019 in the proceedings before the CMM as CC No. 301/SA/2019. The CMM dismissed that application finding that the appellant had alternative remedy before the D.R.T.

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The appellant contends that the mortgage in favour of the bank is illegal, and void and does not affect the right of the appellant over the property and therefore, the bank is not competent to take action under the provisions of the SARFAESI Act to vacate the property. The creation of the mortgage is alleged to be an act of collusion between the aforesaid Sharnita and the bank to illegally dispossess the appellant from the premises.

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On coming to know about the issuance of the notice under Sec. 13(4) of the SARFAESI Act, the appellant approached the D.R.T. by filing the S.A. The appellant holds that she is entitled to retain her possession as a tenant and therefore, seeks to quash the Sarfaesi action. 8. The Ld. Presiding Officer has by the impugned order dismissed the S.A. as not maintainable primarily for the reason that the declaratory suit filed by the applicant/appellant before the Small Causes Court for declaring her right of tenancy was dismissed and therefore, she cannot sustain an application under Sec. 17 (4A) of the

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SARFAESI Act. The appellant is aggrieved and hence, in appeal.

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There is no dispute that the appellant and her family consisting of her sons and daughter, and prior to the death of her husband Shantaram, he too was residing in the subject flat. The bank contends that there is no tenancy in favour of the appellant or her husband. The only recognised tenant in the premises was Devamma Sharavan Bailappa and she had expressly surrendered her tenancy right in favour of the landlord Porbanderwala. Thereafter, the flat was sold by Porbanderwala to the mortgagor Sharnita as per the registered sale deed on 15.10.2015 and she created a valid mortgage in favour of the bank in 2016. The appellant cannot claim any right as a tenant to protect her possession over the subject flat and she does not have even a scintilla of evidence to prove the tenancy in her favour or in favour of her husband. It is also pointed out that the mortgagor/borrower Sharnita is not made a party in the S.A. challenging her claim over the property.

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It has come out in evidence that the appellant and her son have filed two suits before the Small Causes Court as Suit Nos. 92 of 2016 and 2976 of 2015. Those suits were dismissed on 29.10.2010. There is no declaration of tenancy right by the Civil Court. Another LE&C Suit No. 80 of 2016 was filed by the mortgagor which is pending consideration. The mortgagor has also filed RAD Suit No. 1740 of 2003 for getting the appellant evicted from the premises. In that suit, it is admitted that the appellant’s family was residing on the balcony of the subject flat as gratuitous licensees. It does not admit that the appellant was a tenant at any point in time.

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The Ld. Counsel appearing for the appellant Mr Adenwala has vehemently argued that there is more than abandoned documentary evidence to indicate that the appellant and her family were residing in the subject flat. He relied on the Ration Card which indicates the names of all the residents in the flat including the appellant and her children. The school leaving certificate of her son issued in the year 1985 indicates his residence at the subject flat. The appellant’s husband died on 16.08.2001 and the death certificate points out his last residence at the subject flat. The electoral list shows the name of the appellant on 02.06.2006. The electoral cards of her sons and daughter would indicate their address at the subject flat. Their Aadhar Cards also indicate their address at the subject flat. The PAN card of her son also indicates his address at the subject flat.

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There is no dispute that the appellant was residing with her family at the subject flat at least from 1985. In what capacity were they residing in the subject flat is a question that requires determination. 13. There is evidence regarding payment of rent by the eldest brother-in-law of the appellant Late Prabhu Bailappa as early as 195152. After his demise, rent receipts were obtained for the payment of rent in the name of Sharavan Bailappa. He died in the year 1986 and rent receipts consequent to his death were issued in the name of his wife Devamma. The appellant’s husband Shantaram Bailappa died only on 16.08.2001 but there is not a single rent receipt obtained in his name.

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There is no agreement of lease available in favour of any of the tenancy. There is only documentary evidence to prove tenancy is the

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rent receipts. The available rent receipts indicate oral tenancy in favour of Prabhu Bailappa Mohinekar, Sharavan Bailappa and Devamma Sharavan. The last rent receipt in the year 2011 is in the name of Devamma. She has admittedly surrendered the lease in favour of the landlord and therefore, it will have to be held that there was no existing tenancy in favour of anyone. Sec. 17(4A) reads thus:

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“(i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claim shall, for the purpose of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,-

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(a) has expired or stood determined; or

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(b) is contrary to section 65-A of the Transfer of Property Act, 1882 (4 of 1882): or

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(d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and

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(ii) the Debt Recovery Tribunal is satisfied that the tenancy right or leasehold rights claimed in secured asset falls under the sub-clause(a) or sub-clause(b) or sub-clause (c) or sub-clause (d)of clause (i), then notwithstanding anything to the contrary contained in any other law or the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.”

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There is no evidence to indicate that the tenancy was extended

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if so it will have to be concluded that the tenancy, if any, had expired and stood determined. If that be so, the appellant cannot seek protection of her possession under Sec. 17(4A). The fact that her suit for declaration of her tenancy right was not accepted by the Civil Court would further militate against her.

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The Ld. Counsel Mr Adenwala for the appellant vehemently submits that even if the appellant is a licensee, she can only be evicted under the provisions of the Maharashtra Rent Control Act under Sec. 7(4) since she continued to reside on the premises as the legal

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representative of the original tenant.

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On the appreciation of evidence adduced by both sides and the rival submissions made, it has to be observed that there is no evidence regarding the appellant or her husband being a tenant on the premises. Her brother-in-law Prabhu Bailappa had rent receipts issued in his name in the year 1951-52. After his demise, there are the rent receipts issued in the name of his brother Sharavan and on his demise, the oral tenancy was renewed in the name of Devamma. It is pertinent to note that the Appellant’s husband died only in the year 2001 but there was not a single rent receipt issued in his name. Had Shantaram inherited the tenancy right, there would have been a rent receipt issued in his name. The absence of which militates against the case of the appellant in establishing her inherited right of tenancy. Even if the appellant was in possession of the property by sufferance, she could only be treated as a “tenant in sufferance”. Such tenants do not have any legal rights and are akin to trespassers. Operation of Rent Act cannot be extended to “tenant in sufferance” vis a vis SARFAESI Act ( Bajrang Shayamsunder Agarwal vs. Central Bank of India & Ano. 2019(9) SSC 94 relied upon). This view was followed in a later decision of the Hon’ble Supreme Court in Hemraj Ratnakar Salian vs. HDFC Bank Ltd. & Ors. 2021 SCC OnLine SC 611, wherein it is reiterated that a “tenant in sufferance” is not entitled to any protection of the Rent Act.

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Resultantly, the appeal is without any merits and is, therefore, dismissed.

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Sd/Chairperson

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mks-02

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Anila Santaram Mohinekar v. Bharat Cooperative Bank Mumbai Limited

Case brief

What is this about?

What did the court decide?

Anila Santaram Mohinekar v. Bharat Cooperative Bank Mumbai Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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