TaxTMI 
TaxTMI 
2021 (8) TMI 1385
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....lant herein for restraining HDFC Bank, the first Respondent herein, from taking possession of the property in the Appellant's possession. 3. HDFC Bank had granted financial facility to Respondent Nos. 2 and 3 (for short, 'the Borrowers') of Rs. 5,50,00,000/- (Rupees Five Crore Fifty Lakhs). On 03.04.2013, the Borrowers had mortgaged a property bearing Flat No. 501, 5th Floor, Solitaire, Village Kopari, Adi Shankaracharya Road, MHADA Layout, Powai, Andheri (E), Mumbai (for short, "the Secured Asset") in favour of the Bank with an intention to secure the said credit facility. 4. The accounts of the Borrowers were declared as non-performing assets (NPA) on 31.10.2013. On 25.01.2014, the Bank issued a notice Under Section 13(2) of....
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....ed by the landlord for the period from 12.06.2012 to 12.05.2013 is of 12.05.2013 which is after the date of creation of mortgage in favour of the Bank. There is absolutely no material to show that the tenancy was created earlier to the date of mortgage. The tenancy pleaded by the Appellant is an oral tenancy. At the time of grant of facility, third-party valuers had confirmed that the Borrowers were staying at the Secured Asset. The Borrowers, while making representation to the Bank, have not claimed that any tenant is staying at the Secured Asset. The tenancy claimed by the Appellant is an after-thought which cannot be believed in the facts and circumstances of the case. He prays for dismissal of the appeal. 8. We have carefully considere....
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....alal Lalchand Sachdev v. State of Maharashtra (2011) 2 SCC 782 this Court has held that DRT can not only set aside the action of the secured creditor but even restore the status quo ante. Therefore, an alternative remedy was available to the Appellant to challenge the impugned order Under Section 17 of the SARFAESI Act even before the amendment to Section 17 of the SARFAESI Act. However, given that the instant appeal has been pending consideration before this Court from the year 2016, we propose to examine the case on merits without directing the Appellant to avail the alternative remedy. 11. In Harshad Govardhan Sondagar (supra) this Court has categorically held that if the tenancy claim is for any term exceeding one year, the tenancy can....
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....ur by the landlord. 12. A Three-Judge Bench of this Court in Bajarang Shyamsunder Agarwal v. Central Bank of India and Anr. (2019) 9 SCC 94, after considering almost all decisions of this Court, in relation to the right of a tenant in possession of the secured asset, has held that if a valid tenancy under law is in existence even prior to the creation of the mortgage, such tenant's possession cannot be disturbed by the secured creditor by taking possession of the property. If a tenancy under law comes into existence after the creation of a mortgage but prior to issuance of a notice Under Section 13(2) of the SARFAESI Act, it has to satisfy the conditions of Section 65-A of the Transfer of Property Act, 1882. If a tenant claims that he ....
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....SI Act, it has to satisfy the conditions of Section 65-A of the TP Act. 24.3. In any case, if any of the tenants claim that he is entitled to possession of a secured asset for a term of more than a year, it has to be supported by the execution of a registered instrument. In the absence of a registered instrument, if the tenant relies on an unregistered instrument or an oral agreement accompanied by delivery of possession, the tenant is not entitled to possession of the secured asset for more than the period prescribed Under Section 107 of the TP Act. 13. It was further held that the Rent Act would not come to the aid of a "tenant-in-sufferance" vis-à-vis SARFAESI Act due to the operation of Section 13(2) read with Section 13(13) o....