Dismissed

Rajeev Jhunjhunwala v. Bajaj Housing Finance Ltd. and Ors.

DRT21 Apr 2025SA/74/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed the applicant's petition claiming tenancy rights in a mortgaged property. Ruling that an unregistered instrument for a term exceeding one year is insufficient, the Tribunal held the Debt Management Officer's order valid. However, it directed the bank to refund Rs. 9.99 lakh to the applicant.

What did the court decide?

Applicant's petition dismissed; Respondent directed to refund Rs. 9.99 lakh to the applicant with interest.

Rajeev Jhunjhunwala versus Bajaj Housing Finance Ltd. and Ors. — Banking and Recovery | DRT (2025)

¶1

¶2

BEFORE THE DEBTS RECOVERY^{TRIBUNAL.IIIKOLKATA}

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PRESENT:^-SRI KAMAL DE.

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PRESIDING OFFICER.

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S.A. No. 74 OF 2023^{(Order no.22)} DATE OF DELIVERY OF ORDER :^21.O4.2025

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Rajeev J h unjhu nwala

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Applica nts

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-Versus-

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Bajaj Housing Finance Limited.

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Authorised officer, Bajaj Housing Finance Limited.

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Defendants.

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Ajay Kumar Surana.

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Mridula Surana

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..... Proforma Defendants

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Counsel for the SA Applicant

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: Mr. S.Nag (Virtual Mode) with Mr. A. Kesri

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Counsel for defendants nos. 1 and 2- Bank : Mr. N. Mishra

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with Mr. S. Bhattacharya

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Counsel for proforma defendants no. 3 and 4 : None

¶21

ORDER

¶22

sA/74/23 atongwith IA/245/23 is taken up for hearang. Heard Ld. Counsel for the parties. Considered.

¶23

In firing this petition sA appricant prays for stay of the DM order dated 0r/72/2022 and arso restraining the deiendanti anJlor tneir onicers, men, agents from taking "ny_,:,:p, in respect of tne suOlect property situated at unit no.7A, on the.Tth floor, at gustness ro;;rrl'o'"in9 pr"rnir", no.206, A.j.C. Bose Road, p. S. _Shakespeare sarani,^{-ro]tltu'_zoo} 017 ( as described in the schedule of property).

¶24

It is stated that the appricant is neither a borrower nor a guarantor to the credit facilty provided by the defendant nos. 1 and Z ,rt" ti" borrower.

¶25

It is stated that Ajay Kumar Surana and Mridula Surana , the proforma defendants Surana and no. 3 and M ridula 4 are Surarthe tawfut owners "iin" pr"p""i. Ajay Kumar tenancy agreement dated o3/ot/20r7 in favour or,n" upJi.un,u.'ut't"d

¶26

¶27

Applicant is carrying on business^{of tradingof clothes thereinthe said} property and has obtained trade^{licence, telephone connection etc'} Applicant is also^{paying regularrent every month.}

¶28

It is stated that applicant is^{a bonafide tenantin the subjectproperty} since 2017 and also^{in possessionthereofuninterruptedly by the applicant} Applicant has also filed^{a title suit before Ld. Civil ludge (lr' Division),2nd} court, Sealdah being^{TS No.462 of 2022and has also obtained interim} order restraining the^{proformadefendants not to oustthe tenantillegally} from the said^{property withoutdue processof law.}

¶29

The^{proforma defendantsbeing owners of the property} -^mortgaqedthe subject^{propertyto the defendant no 1 and obtained creditfacility from the} defendant^{no.1.Recoveryagents of the defendantnos l and 2 on multiple} occasions^{also came to visit the said property '}

¶30

Applicant^{has also paid a sum of Rs'7 5 lakh to the land owner to protect} the^{property.Such payment was made by the aPplicantonly afterbeing} assured^{by the officersor tne Jeienoant no 1 that there is no danqer to the} iorl".r,on'o,^{,n" property. Suddenlyon o4/oll2o23solep_ersons cameup} irom defendant^{rr ano anixeil iotice oateo o3/ot/23 alongwithpurPorted} order of^{DM dated Olll2l7:-on tie *urf for intimationfor vacation of the} property.

¶31

Defendantno.land2suppressedthefactofprlorten.ancyofthepetitioner purported^{order of DM dated0U t2122'} ]"i"i",i"i ""

¶32

It is stated^{that applicantis booafidetenant of the premises and cannot be} ousted^{from the propertv ;;;i} ;; process of^{law'- sA apPlicanthas} order^{of DM daled oLll2l2022'} prayed for^quashingtn" ''p'gi"o

¶33

Defendant^{FI has filed affidavit in opposition as a-qainst SAf4l23contending} fi "H;"il;,;;'""0""1":.ll,Lli"'l#i:ll"::f ;U*::lL::T:ffi^T :l'"' 1i:::.'T,ff:'.'":T,l.ll^{';"';;;;;;'.t' o"r"nou''i FI A sumor} in ravour^{or the borrowerand} Rs.84,5s,o0o/-^{was sanctionl'o ;;;iil;t} ;;-#;;".^{beinsdefendantnos 3 and 4'}

¶34

instalment^and Defendant^{nos 3 and 4defaultedin making payment} 'of said^{loan account of tn" o"Jr.1"*"7 *tt ii"tt#'tiaas NPA on o4tov2022in} with the euidelines^{or RBI'} ;;;;;;."

¶35

-opf' An application^{was also preferred u/s 14 of the sarfaesiAct withnine} Soutn^{24 parganas} '-AliPore^{and upon} clauses^{affidavit before ri} 01.",, "i in "," 1 - : rl : ::':L ?1"". ::U' i,'."ilT::^Ul "T^lfl;:; oleased to Pass^{the PurP(} Possession^{of the secured asset'}

¶36

Oefendant^{FI also took possession of the securedass:: with the help of} ili;"-^{i iii,oz'.} :i:l;i :fi fi* lf : U. :?'1fi⁵ T""J:T:[1: 226 of the^{constitutionot '}

¶37

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¶39

High Court at Calcutta . Hon'ble^{High Court at Calcutta was pleasedto direct} the Beniapukur Police station on^{23/021?3to restore the possession of} the secured asset and^{possessionwas handed over accordingly.}

¶40

The said writ^petition was taken up^{for hearing on 2A102123and upon} hearing the interirm order extended till^{10/03/2023.Beingdissatisfied} with the order daled 23t02/23 and 28/02/23 ,^{an appeal was preferred} before Hon'ble High Court^at Calcutta^{which was registeredas} FMAl263l23. After hearing of the said^{appealan order was passed on} 28/08/24 interalia directed this tribunal^{to hear the matterat the earliest} possible convenience of the tribunal.

¶41

It is denied that the applicant^{is a} tenant^{and it is stated that there is no} substantial documents by which^{it could be proved that the applicant is a} lawful tenant.

¶42

It is denied that the tenancy^{agreement was executedon 03lOt/2017 in} favour of the applicant by defendant^{nos. 3 and 4 and defendant FI has} prayed for dismissal of the^petition. 1t is stated that^{purported order of DM} is good in law.

¶43

It is stated that applicant filed^{his petition basedon concocted story and} fabricated documents and^{has prayed for dismissalof the petition.}

¶44

The applicant has also filed aFfidavit^{in reply.}

¶45

It is stated that defendant^{bank received Rs.9.99Lakh therebyaccepting} the Sarfaesi Applicant as^{tenant in respect of the subject property . It is also} stated applicant^is residing^{in the property. Defendant FI has obtainedthe} order from Ld. DM u/s 14 of the^Act. It^{is stated that the propertywas} mortgaged to the defendant bank^{subject to tenancy of the SA applicant} and has^prayed for allowing^{the petition.}

¶46

It is stated by the SA applicant that^{defendantFI has no right or claim} over the secured asset in any^{manner,and that SA applicantcan not be} evicted from the subject^property.

¶47

Issues:

¶48

Whether SA applicant has a bonafide tenancy^{in respect} of^the subject^property?

¶49

Whether the^purported order dated OUt2l22^{passedby Ld. DM} suffers from any irregularity or illegality or^impropriety?

¶50

Whether defendant FI received an amount of^Rs. 9.99^{Lakh from} the SA applicant?

¶51

I have taken a look over the materials on^{record including avermentsand} pleadings in the case alongwith its^prayers.

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Decisions with reasons -

¶55

All the issues are taken up together for discussion as the issues are interlinked and bearing upon one another.

¶56

SA applicant has aleged that he is a tenant in respect of the subject property as described in the schedule of the petition.

¶57

sA appricant has reried upon the tenancy agreement dated 03.01.2017 and also rent receipts on different dates , telephone bills etc.

¶58

It appears that tenancy agreement is unregistered one.

¶59

It appears that the tenancy agreement is for perpetual period i.e. for more than one year. No registered agreement is torttrcoming before this tribunal .

¶60

In any case, if any tenant claims that he is entiued to the possession of the secured asset for a term of more than u y"u..it;;;; b" supported by the execution of a registered instrument.

¶61

In the absence of registered instrument, if the tenant reries on an unregistered instrument , the tenant is noi entifleJ to -possession of ttre secured asset for more than the period prescribed ,n0".. ,"aiion 107 of the TP Act. The judgment (2019) 9 Supreme Court Cur", St t. ,Jti"O ,pon.

¶62

In the case Harsh Govardhan Sondagar Vs. International Asset Reconstuction co, {2014(6)scc1}, the xon,ote srpr"." clurt ctassirieo tenants into 3 categories :

¶63

1i _1"_1-i,:^{as per.tenancy agreement prior to mortgage.} z) tenant inducted into the property afte. mortgagJ b-ut prior to issuance of demand notice under Section 13(2).

¶64

1. Tenant inducted into the property after issuance of demand notice. i) With respect to Category 1, court held that tenancl agreement is binding on the bank and tenant can be evicted onty Oy ,oring " civil court under due process of law.

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ii) With respect to second Category, the court held that if the tenancy agreement ls contrary to the provisions of Transfer of Property Act and contrary to the terms of mortgage deed executed, then they can be evicted by the CMM before whom application is filed for actual possession.

¶66

iii) In the case of third Category of tenants occupying the premises, since the intention of the mortgagor is to jeiraiO the secured creditor, such a lessee could be evicted by the CMM on an application made by the secured creditor seeking physical possession.

¶67

¶68

IfindthatinthecasebeforemethesAapplicanthasrelieduponthe or rent^{receipts issued by the land lord being defendant nos' 3} "9.""."nt and 4.

¶69

Section 107 of^{T.P.Act providesthat a lease or tenancy for a term} exceeding one^{year can be made only by a registeredinstrument'So if the} applicaniclaims^{that he is entitled to possessionof secured asset for any} term exceeding^{one year made in his favour he has to produce proofof} registered agreement^{bY lessor'}

¶70

More over, loan was sanctioned^{in favour of defendant nos 3 and 4on} 72/10/2oi8 . Borrowers also^{created mortgage over the immoveable} su6ject propertyⁱⁿ favour^{of the respondent towards. security of the loan} and neither ttre borrower^{nor any third partymade any disputein the} process.

¶71

No approval regarding alleged tenancy^has also been^{taken by theSA} applicant from defendant FI at the time of sanction^{of the loanor} thereafter.

¶72

The alleged tenancy of the applicant has also not been approved from the side of respondent FI in any manner.

¶73

¶74

ft is a case of the SA applicant that he filed a civil suit heing 15 462/22 and has obtained interim order of injunction on 28/09/22.

¶75

Regarding civil court injunction it is pertinent to mention that section 34 of the Sarfaesi Act,2002 says that Civil court jurisdiction is barred in regard to any matter which a Debts Recovery Tribunal or Appellate Tribunal is empowered under the Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act,1993 (51 of 1993 ).

¶76

I think that the alleged tenancy has been created just to obstruct to the Sarfaesi proceeding. The applicant has no right or locus standi to agitate any claim in respect of the alleged tenancy in absence of any registered instrument.

¶77

It appears that defendant FI has obtained an order from the ld. Dtvl on 0l/L2/22 u/s 14 of the Sarfaesi Act.

¶78

It appears that Ld. DM dwelt over and recorded his satisfaction on all such 9 clauses as enshrined u/s 14(1b) of the Sarfaesi Act. And being satisfied passed the order. purported order of DM dated t7/08/22 appears to be legal and valid and does not suffer from any illegality or irregularity or impropriety.

¶79

Let us now come to the issue of payment of a sum of Rs.9.99 Lakh to defendant No.1 by the SA applicant.

¶80

¶81

SA applicant^{has filed affidavit in reply enclosingstatementof account} rrom^jo/tolzota b^{Lg/01/2023 and alsostatementof account of hisown} bank i.e. Indusind^{bank showingpaymentin favour of defendantFI'}

¶82

Ld. Counsel appearing^{for the defendantFI however submitsthat thereis} no r"nt ,"c"iptt' o.^{payment receipts filed by the SA applicantin support} oi .iairn or'tenancy^{or defendant iI has acceptedapPlicantas a tenant' I} irffv igr". with^{the submission of defendantFI as advanced bv the ld'} counsej fo. defendant^{FI. Tenancy cannot be created in suchmanner'}

¶83

I do not find any^{supporting documents like rent receiPts or payment} to si,b* thal^{defendantFl has accepted the pavmentas} ;fi";l;dg";;"t igain;t th; urr"g"o^{tenancy in respect of the subject premises from SA} applicant.

¶84

It is stated^{in the SA application that the appllcanttried to retain the} " i,:.Ji,t"p",tv ano ne itso made such payment to.retain such^property to time and^{he hai paid an amount totallingRs 7'50 Lakh to} ;;ilii;" defendant^{no 1 with an intentiJn'ioProtect the propertyon behalfof the} borrower. So from^{the own avermentof the applicant in SA applicatonit cannotbe} said that^{defendant nutt"pi"iiJIripuv'"nt in iespect of thealleged} p"i-rn"-ni u{1guintt^{the alleged tenancvlt} tenancv or^{he made} 'utn appears^{that sA applicant ' #.d"e' ;;th - pavments on behalf of the} borrower.

¶85

Defendant FI^{has also not filed rejoinderas against the affidavitin reply} Ir"i ov1n"^{applicant on 2L/04/2025'}

¶86

Be that as^{it may} ,^{it appears from the affidavitin^reply and banking} documents defendant^{FI that rightlv sA applicant"'i"t o' *'ongrv'Jij"i-'n'ii-tJnt"ption 'tli"'u p"vmentor of Rs} -law'^{9 99} Such^{Lakh pavmentto the} hrc n^i also b""n .ont.o,""{;,'"fro;^{;h; ;ae ofdefendant Fl bv fiing} li, .Jil,,-"i",^{at igaintt the affidavit in rePlv'} Under^{such circumstances'I think that defendant FI is liable to refundthe} ni,s.s9^{Lakh to the sA applicani'} Il"""i,"i "l

¶87

All the^{issuesare thusdisposed of accordingly'}

¶88

Hence ordered'

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