Dismissed

M G Sabu v. Indian Overseas Bank

DRT7 Jul 2025SA/5/2025

Case brief

AI extract

What is this about?

The Tribunal dismissed an application by a tenant seeking protection against eviction and possession by a bank under SARFAESI. The Tribunal found the tenant failed to prove bona fide tenancy as the relied-upon agreement was unregistered, titled as 'pledged,' lacked corroborative evidence of payment, and was executed after loan defaults. Relying on Supreme Court precedents, the Tribunal held the te

What did the court decide?

Securitization application dismissed with costs to the 1st defendant (Bank).

M G Sabu versus Indian Overseas Bank — Specific Performance | DRT (2025)

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Fair Order

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IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

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DATED THIS 7^th DAY OF JULY, 2025

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd]

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PRESIDING OFFICER

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S.A No. 5 of 2025

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Between

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M.G. Sabu, S/o.M.O. George, Mekattukulam House, Door No.46/1128/B7, Victory Garden, Near Rudramaala Temple, Vaduthala, Ernakulam, Kochi – 682 023.

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--- Applicant

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And

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M/s. Indian Overseas Bank, Ernakulam Branch, Thekkeekkara Mansion, First Floor, M.G. Road, Ernakuklam, Kochi 682035, Rep. by Authorized Officer.

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Sanil Kumar V., IC 41/2505, Kochukarimpadam, Thottam, Mancaud P.O, Trivandrum – 695 009.

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Rekha Suvarnavalli, IC 41/2505, Kochukarimpadam, Thottam, Mancaud P.O, Trivandrum – 695 009.

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--- Defendants

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SA No. 5 of 2025

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This Securitization Application coming on 04.06.2025 for final hearing before me in the presence of Ms. Megha Mukundaswar, Counsel appearing for the Applicant and Mr. Sunil Shankar, Counsel appearing for the 1^st defendant and defendants 2 and 3 having been set exparte and upon hearing arguments of learned Counsels for both the parties and upon perusing the material on records, this Tribunal delivered the following:

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O R D E R

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This Securitisation Application was filed on 02.01.2025 seeking to declare that the applicant who is in possession and enjoyment of the tenanted premises at 2^nd floor bearing Door No.46/1128-B7 of the secured asset on the basis of agreement cannot be summarily evicted and to declare that the tenancy of the applicant is continuing from the year 2016 and to restrain the 1^st defendant proceeding against the applicant and to direct the defendants 2 and 3 to pay costs of this proceedings to the applicant.

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The defendants 2 and 3 availed housing term loan facility of Rs.114.50 Lakhs on 12.03.2020 and home improvement loan facility of Rs.10 Lakhs on 13.08.2020 from the 1^st defendant bank. On 13.03.2020 the above said credit facilities has been inter alia secured by Equitable mortgage of an extent of 2.22 Ares of land with building therein situated in Re. Sy. No.985/165, Cheranelloor village, Kanayannur Taluk, Ernakulam District, belonging to the defendants 2 and 3.

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According to the 1^st defendant bank since the defendants 2 and 3 defaulted in repayment of the loan account, their loan accounts was classified as Non-Performing Asset on 10.02.2023. Annexure-B1 demand notice was issued to them calling upon them to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. It appears that the applicants neither sent any objection/representation to the demand notice nor did they clear off their liability due to the defendant bank.

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Therefore, Annexure-B2 possession notice dated 29.05.2023 was issued for symbolically taking physical possession of the secured asset. Subsequently, the 1^st defendant bank approached the Chief Judicial Magistrate Court, Ernakulam and filed Annexure-A1 application and affidavit under Section 14 (1) of the SARFAESI Act, 2002. Subsequently the matter was made over to the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam. Order AnnexureA7 dated 30.12.2024 came to be passed appointing Advocate Commissioner for taking physical possession of the secured asset. The

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Page 2 of 10

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SA No. 5 of 2025

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Advocate Commissioner issued notice Annexure-A3 dated 22.10.2024 to the applicant informing him that he would take physical possession of the secured asset on or after 06.11.2024. The applicant who claims to be in possession and enjoyment of the secured asset as tenant has filed this SA seeking for the reliefs stated supra.

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The counsel appearing for the applicant submitted that the applicant entered into a written agreement with Mr. Justine who was the previous owner of the flat bearing Door No.31/1068 D2 (New No.46/1128 B7) upon payment of an amount of Rs.5,50,000/- in cash and that thereafter the tenancy was renewed on completion of every 11 months and that subsequently, the applicant entered into an agreement Annexure-A2 dated 01.12.2024 with the 2^nd defendant, who is the present owner of the secured asset, and that he paid an additional amount of Rs.25,000/- to the 2^nd defendant who acknowledged the tenancy for occupation of the of the secured asset till the return of the amount of Rs.5,75,000/- by the 2^nd defendant.

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The counsel appearing for the applicant further submitted that the above said amount has to be considered as payment of rent in advance which is refundable upon termination of tenancy or upon vacating the premises. The applicant was not aware of the availment of the credit facility by the 2^nd defendant upon creation of mortgage over the rented property.

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The counsel for the applicant submitted further that the Advocate Commissioner who visited the property has reported his interim report Annexure-A5 that the tenants are occupying the premises and that the 1^st defendant has filed the application in MC No.618/2024 suppressing the tenancy of the applicant in the property and that since the tenancy is for a period of 11 months, the agreement is not compulsorily registerable under the Registration Act and that when tenancy is admitted by both the parties, the tenant is not entitled to be evicted from the rented premises even though the lease agreement was not registered u/s 107 of Transfer of Property Act as laid down by the Hon'ble High Court of Madras in Indian Bank Vs. M/s.Nippon Enterprises South [AIR 2011 MAD 238 ] and that therefore, the SA may be allowed as prayed for.

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The counsel appearing for the 1^st defendant bank submitted that the alleged agreement Annexure-A2 which is not a genuine agreement was executed after the creation of the mortgage by the defendants 2 and 3 over the secured asset and that the applicant is not a tenant of the secured asset and that this SA has been filed at the instigation of the defendants 2 and 3 in order to defeat the securitization measures since the tenure of the alleged agreement Annexure-A2 having been lapsed, the applicant cannot claim tenancy over the secured asset. Annexure-A2 is not sufficiently stamped.

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Page 3 of 10

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SA No. 5 of 2025

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The counsel for the 1^st defendant submitted further that the alleged money transaction between the applicant and the defendants 2 and 3 is a cooked-up story for the purpose of the case. Since Annexure-A2 agreement is not a registered document, the applicant cannot claim the right of tenancy over the secured asset and that he could be considered only as the tenant-in-sufferance and that the operation of the Rent Act could not be extended to a tenant in sufferance vis-à-vis the SARFAESI Act 2002 as laid down by the Hon’ble Supreme Court in Hemraj Ratnakar Salian Vs. HDFC Bank Ltd. and ors. (Criminal Appeal Nos.843-844 of 2021) and Bajarang Shyamsunder Agarwal Vs. Central Bank of India and ors. (Criminal Appeal No.1371 of 2019) and that therefore the SA may be dismissed with cost to the 1^st defendant bank.

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The issues which arise for consideration before this Tribunal are as follows:

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i) whether Annexure-A2 could be considered as a lease agreement;

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ii) whether Annexure-A2 is a legally valid agreement; iii) whether the applicant is in possession and enjoyment of the secured asset as the tenant of the defendants 2 and 3;

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Issues (i) to (iii) – The applicant relies upon Annexure-A2 agreement in order to prove his contention that he is the tenant of the secured asset. A perusal of the recitals of Annexure-A2 would reveal the fact that it is not a genuine lease agreement for the following reasons.

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(i) The applicant has averred in the SA that a sum of Rs.5,50,000/- was paid to Mr. Justine, the previous owner of the secured asset in cash. No material has been placed before this Tribunal as to from which source the applicant got a huge amount of Rs.5,50,000/- in cash.

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(ii) Though it is recited in Annexure-A2 that it was executed on 01.12.2024, the commencement of tenancy is stated to have come into effect from 07.08.2023 upon payment of Rs.5,50,000/-. No document has been produced by the applicant in order to prove the payment of the huge amount of Rs.5,50,000/- to the 2^nd defendant.

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(iii) Annexure-A2 agreement is titled as “pledged agreement” Hence it is evident that this agreement is not lease agreement and as such the applicant cannot be a tenant of the secured asset;

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Page 4 of 10

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SA No. 5 of 2025

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(iii) No documents such as Voter ID, Ration Card, cooking Gas connection have been produced in order to show that the applicant is in occupation of the secured asset.

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(iv) No proof for payment of electricity and water charges by the applicant as recited in Annexure-A2 agreement has been produced.

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(v) It is recited in Annexure-A2 agreement that the 2^nd floor building will be let to the second part for a period of from 07.08.2023. But the renewal agreement for a further period of 11 months from 07.08.2024 has not been produced. Above all, Annexure-A2 is not a registered document.

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Therefore, the claim of the applicant that he is in occupation and possession of the secured asset as the tenant pursuant to Annexure-A2 agreement is liable to be rejected as false.

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In Indian Bank Vs. M/s.Nippon Enterprises South [AIR 2011 MAD 238 ] relied on by the counsel for the applicant, the unregistered lease deed was sought to be relied upon by the tenant in a proceeding initiated by the Bank under the provisions of the SARFAESI Act. It was contended by the tenant that since he had been a tenant in bonafide occupation, the Bank could not take possession of the premises under the provisions of SARFAESI Act. The Hon'ble High Court of Madras held as follows:

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“The reliance sought to be placed by tenant over unregistered lease deed was only for a collateral purpose to show that the tenant was inducted into the premises right from the year 1992 and thereafter by an unregistered lease deed from the year 2000 he had been in possession of the premises. When lease was a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of court to determine whether was in fact a lease otherwise than through such deed.

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In the present case at hand, the applicant has failed to establish his case that he is tenant of the secured asset. The Advocate Commissioner who visited the secured asset has not specifically stated in his interim report Annexure-A5 that applicant was the tenant of the secured asset. Therefore, the above cited judgment has no application to the facts of the present case.

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Page 5 of 10

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SA No. 5 of 2025

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In Hemraj Ratnakar Salian Vs. HDFC Bank Ltd. and ors. (Criminal Appeal Nos.843 - 844 of 2021) relied on by the counsel for the 1^st defendant the Hon’ble Supreme Court has held as follows:

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“There is a serious doubt as to the bonafide of the tenant, as there is no good or sufficient evidence to establish the tenancy of the appellant. The borrowers have not claimed that any tenant is staying at the secured asset. The appellant has pleaded tenancy from 12.06.2012 to 17.12.2018. This is not supported by any registered instrument. He is a tenant-insufferance, therefore he is not entitled to any protection of the Rent Act. Further 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 u/s 13 (2) of the SARFAESI Act.

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In Bajarang Shyamsunder Agarwal Vs. Central Bank of India and ors. (Criminal Appeal No.1371 of 2019) relied on by the counsel for the 1^st defendant the Hon’ble Supreme Court has held as follows:

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“The bonafide of the tenancy has doubtful as there was no good or sufficient evidence to establish the tenancy in the first place. Th operation of the Rent Act could not be extended to a tenancy- in-sufference vis-à-vis the SARFAESI Act, due to the operation of Sec.13 (2) r/w Sec.13 (13) of the SARFAESI Act 2002.”

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In the present case at hand no reliable document has been produced by the applicant to prove his tenancy in the secured asset. The 2^nd defendant who is said to have entered into Annexure-A2 agreement with the applicant has not come forward before this Tribunal stating that the applicant is the tenant of the secured asset. It is pertinent to mention herein that though the 2^nd defendant received Annexure-B1 demand notice, he did not send any objection/ representation stating that the secured asset is under the tenancy of the applicant. Annexure-A2 is not a registered lease agreement which was executed after issuance of Annexure-B1 notice. Therefore, the dictum laid down in the aforesaid two judgments of the Hon’ble Supreme Court is squarely applicable to the facts and circumstances of the present case.

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This Tribunal having considered the above facts of the case and submission of both sides’ counsels comes to a conclusion that Annexure-A2 agreement is not a genuine and valid document and that the applicant is not the bonafide tenant of the secured asset and that

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Page 6 of 10

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SA No. 5 of 2025

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this SA has been filed at the instance of the defendants 2 and 3 pursuant to initiation of the measures by the 1^st defendant bank for taking physical possession of the secured asset.

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In view of the foregoing reasons, this Tribunal holds that the SA which is devoid of merits is liable to be dismissed.

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Resultantly, S.A No. 5 of 2025 stands dismissed with cost to the 1^st defendant.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 7^th day of July, 2025.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

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SA No. 5 of 2025

S C H E D U L E

District : Ernakulam Sub District : Ernakulam Taluk : Kanayannur Village : Cheranellor Desom : Vaduthala Old Sy. No. : 165 Re. Sy. No. : 985 Extent : 2.22 Ares

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Description

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All that is part and parcel of land having an extent of 2.22 Ares of land with multistoried building therein with tenanted premise of the applicant located at 2^nd floor bearing Door No.31/1068-D2 (New Door No.46/1128-B7), situated in old Sy. No. 165 with Re. Sy. No.985, Cheranellor Village, Kanayannur taluk, Ernakulam District belonging to the 2^nd defendant and 3^rd defendant and obtained by them as per sale deed No.953/2020 of Ernakulam SRO dated 13.3.2020 and more particularly detailed therein.

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Boundaries

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East : Property of Joseph North : Road West : Road South : Property of Shyamala

(Su. WILLYAHM)

PRESIDING OFFICER

Page 8 of 10

SA No. 5 of 2025

List of documents filed by the Applicant along with the S.A.

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Sl.	Date	Particulars
No.
1.	---	True copy of MC No.618/2024 filed before the Additional Chief Judicial	Annexure-A1
		Magistrate Court (MPs/MLAs) Ernakulam.
2.	01.12.2024	True copy of the agreement with Englishtranslation.	Annexure-A2
3.	22.10.2024	True copy of the notice issued by Advocate Commissioner to defendants 2 and 3.	Annexure-A3
4.	30.12.2024	True copy of the typed-out version of theinterim report.	Annexure-A4
5.	30.12.2024	Certified copy of the interim report filed by the Advocate Commissioner in MC No.618/2024 pending before the Additional Chief Judicial Magistrate Court (MPs/MLAs)Ernakulam.	Annexure-A5
6.	---	Certified copy of CMP No.9951/2024 in MC No.618/2024 before the Additional Chief Judicial Magistrate Court (MPs/MLAs)Ernakulam.	Annexure-A6
7.	30.12.2024	Certified copy of the order in CMP No. 9951/2024 in MC No. 618/2024 passed by Additional Chief Judicial Magistrate Court (MPs/MLAs)Ernakulam.	Annexure-A7
8.	08.05.2020	True copy of the agreement along with translation.	Annexure-A8
9.	---	True copies of electricity bills for the years 2021and 2022.	Annexure-A9

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Page 9 of 10

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SA No. 5 of 2025

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List of documents filed by the 1^st defendant along with the written statement

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Sl. No.	Date	Particulars
1.	13.02.2023	True copy of demand notice and acknowledgement cards.	Annexure-B1
2.	29.05.2023	True copy of the possession notice	Annexure-B2
3.	31.05.2023	True copy of the paper publication in Deshabhimani newspaper, Kochi edition and The New Indian Express newspaper,Kochiedition.	Annexure- B2(a)
4.	---	True copy of the photographs evidencing affixture on the secured asset.	Annexure- B2(b)
5.	04.06.2024	True copy of MC No.306 of 2023 before the Chief Judicial Magistrate Court, Ernakulam.	Annexure-B3

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 10 of 10

M G Sabu v. Indian Overseas Bank

Case brief

What is this about?

What did the court decide?

M G Sabu v. Indian Overseas Bank

Case brief

What is this about?

What did the court decide?

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