Summary
An asserted tenant sought to obstruct possession of a mortgaged flat under SARFAESI proceedings. The Court distinguished genuine subsisting tenancies from an unsupported claim raised after possession proceedings. Inconsistent tenancy dates, photocopied receipts and contrary bank records failed to establish the claimed protection. Alternatively, the alleged oral tenancy could not continue through renewal barred after the statutory notice. The appeal was dismissed with time to deliver possession.
Issues
- How tenancy rights and SARFAESI enforcement should be reconciled.
- Whether the appellant established a bona fide subsisting tenancy resisting possession.
Provisions considered
- Section 35, Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002The overriding clause is not confined categorically to laws in the same field; the contrary restriction in Vishal N. Kalsaria was too narrow. (¶¶ 17, 24, 36)
Held
- A valid tenancy predating the mortgage is respected until lawfully determined; a tenancy created after mortgage but before the statutory demand must satisfy Section 65-A. A claim to a term exceeding a year requires the registered instrument prescribed by law. (¶¶ 18, 19, 20, 21, 25)
- Absence of a registered lease does not dispense with proof of an alleged oral tenancy through reliable evidence. Here contradictory dates, photocopied receipts, an unopposed ex parte injunction against the borrower and contrary bank and society records did not establish bona fide tenancy. (¶¶ 26, 27, 28, 29, 30, 31, 32)
- On the appellant’s alternative account, the oral tenancy carried no renewal covenant, and renewal after the demand notice was barred. A tenant at sufferance could not obtain the claimed Rent Act protection against enforcement. (¶¶ 33, 34, 35, 36, 37)
- The Court did not determine the scope of the 2016 amendment or rights of other categories of tenants. (¶¶ 16, 37)
Result
The appeal was dismissed. The appellant was directed to hand over the secured asset within twelve weeks to the Assistant Registrar at Bandra Centre of Courts for delivery to the bank.