Vishal N Kalsaria Vs Bank of India .

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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 52 OF 2016

(Arising out of SLP (Crl.) No.8060 of 2015)

VISHAL N. KALSARIA ………APPELLANT Vs.

BANK OF INDIA & ORS. ………RESPONDENTS with

CRIMINAL APPEAL NO. 53 OF 2016 (Arising out of SLP(Crl) No. 8064 of 2015)

CRIMINAL APPEAL NO. 54 OF 2016 (Arising out of SLP(Crl) No. 8063 of 2015)

CRIMINAL APPEAL NO. 55 OF 2016 (Arising out of SLP(Crl) No. 8062 of 2015)

CRIMINAL APPEAL NO. 56 OF 2016 (Arising out of SLP(Crl) No. 8066 of 2015)

CRIMINAL APPEAL NO. 57 OF 2016 (Arising out of SLP(Crl) No. 8067 of 2015)

CRIMINAL APPEAL NO. 58 OF 2016 (Arising out of SLP(Crl) No. 8068 of 2015)

CRIMINAL APPEAL NO. 59 OF 2016 (Arising out of SLP(Crl) No. 8069 of 2015) CIVIL APPEAL NOS. 414-415 OF 2016

(Arising out of SLP(C) Nos.13295-13296 of 2015)

CR.M.P.No. 6822/15 in CRIMINAL APPEAL NO. 753 OF 2014

CR.M.P.No. 6823/15 in CRIMINAL APPEAL NO. 754 OF 2014

CRIMINAL APPEAL NO. 62 OF 2016 (Arising out of SLP(Crl) No. 6944 of 2015)

CRIMINAL APPEAL NO. 63 OF 2016 (Arising out of SLP (Crl) No. 6945 of 2015)

CIVIL APPEAL NO. 469 OF 2016 (Arising out of SLP(C) No. 25133 of 2015)

CRIMINAL APPEAL NO. 64 OF 2016 (Arising out of SLP(Crl) No. 6941 of 2015)

CIVIL APPEAL NO. 417 OF 2016 (Arising out of SLP(C) No. 28040 of 2015)

CIVIL APPEAL NO. 419 OF 2016 (Arising out of SLP(C) No. 28446 of 2015)

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CIVIL APPEAL NO. 420 OF 2016 (Arising out of SLP(C) No. 28300 of 2015)

CIVIL APPEAL NO. 421 OF 2016 (Arising out of SLP(C) No. 12772 of 2015) and

CIVIL APPEAL NO. 422 OF 2016 (Arising out of SLP(C)No. 31080 of 2015)

J U D G M E N T

V. GOPALA GOWDA, J.

The applications for impleadment are allowed.

2. Leave granted in all the special leave petitions.

3. In the present batch of appeals, the broad point

which requires our attention and consideration is

whether a ‘protected tenant’ under The Maharashtra Rent

Control Act, 1999 (in short the ‘Rent Control Act’) can

be treated as a lessee, and whether the provisions of

The Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002

(in short, the ‘SARFAESI Act’) will override the

provisions of the Rent Control Act. How can the right

of the ‘protected tenant’ be preserved in cases where

the debtor-landlord secures a loan by offering the very

same property as a security interest either to Banks or

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Financial Institutions, is also the essential legal

question to be decided by us.

4. In all the appeals, the same question of law would

arise for consideration. For the sake of convenience

and brevity, we would refer to the relevant facts from

the appeal arising out of S.L.P.(Crl.) No.8060 of 2015,

which has been filed against the impugned judgment and

order dated 29.11.2014 in M.A.No. 123 of 2011 in Case

No.237 of 2010 passed by the learned Chief Metropolitan

Magistrate, Esplanade, Mumbai, wherein the application

of the appellant herein for impleadment as intervenor

as well as stay of the order dated 08.04.2011 passed in

Case No.237 of 2010 by the learned Magistrate,

Esplanade, Mumbai, was dismissed.

5. Respondent Nos. 4 and 5 had approached the Bank of

India (Respondent No.1) (in short “the respondent

Bank”) for a financial loan, which was granted against

equitable mortgage of several properties belonging to

them, including the property in which the appellant is

allegedly a tenant. The respondent nos. 4 and 5 failed

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to pay the dues within the stipulated time and thus, in

terms of the SARFAESI Act, their account became a non-

performing asset. On 12.03.2010, the respondent-Bank

served on them notice under Section 13(2) of SARFAESI

Act. On failure of the respondents to clear the dues

from the loan amount borrowed by the above respondent

nos. 4 and 5 within the stipulated statutory period of

60 days, the respondent-Bank filed an application

before the Chief Metropolitan Magistrate, Mumbai under

Section 14 of the SARFAESI Act for seeking possession

of the mortgaged properties which are in actual

possession of the Appellant. The learned Chief

Metropolitan Magistrate allowed the application filed

by the respondent-Bank vide order dated 08.04.2011 and

directed the Assistant Registrar, Borivali Centre of

Courts to take possession of the secured assets. On

26.05.2011, the respondent no.4 served a notice on the

appellant, asking him to vacate the premises in which

he was residing within 12 days from the receipt of the

notice. The appellant fearing eviction, filed a Rent

Suit R.A.D. Suit No. 913 of 2011 before the Court of

Small Causes, Bombay. Vide order dated 08.06.2011, the

Small Causes Court allowed the application and passed

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an ad interim order of injunction in favour of the

appellant, restraining respondent no.4 from obstructing

the possession of the appellant over the suit premises

during the pendency of the suit. In view of the order

dated 08.06.2011, the appellant then filed an

application as an intervenor to stay the execution of

the order dated 08.04.2011 passed by the Chief

Metropolitan Magistrate. The learned Chief Metropolitan

Magistrate vide order dated 29.11.2014 dismissed the

application filed by the appellant by placing reliance

on a judgment of this Court rendered in the case of

Harshad Govardhan Sondagar v. International Assets

Reconstruction Co. Ltd. & Ors.1. Dismissing the

application, the learned judge held as under:

“3. ...the Hon’ble Supreme Court has held that the alleged tenant has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than a year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.

1 (2014) 6 SCC 1

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4. It is to be highlighted that the intervener did not place on record any registered instrument to fulcrum his contention. So, in view of the ratio laid down in Harshad Sondagar’s case (cited supra), I hold that the intervener is not entitled to any protection under the law.”

6. The learned Chief Metropolitan Magistrate further

held that when the secured creditor takes action under

Section 13 or 14 of the SARFAESI Act to recover the

possession of the secured interest and recover the loan

amount by selling the same in public auction, then it

is not open for the Court to grant an injunction under

Section 33 of the Rent Control Act. The learned Chief

Metropolitan Magistrate further held that the order

dated 08.06.2011 passed by the Small Causes Court,

Mumbai cannot be said to be binding upon the

respondent-Bank, especially in the light of the fact

that it was not a party to the proceedings. Hence the

present appeal filed by the appellant.

7. We have heard the learned counsel for both the

parties.

8. Before we consider the submissions advanced by the

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learned counsel appearing on behalf of the parties, it

is essential to first appreciate the provisions of law

in question.

9. The Maharashtra Rent Control Act, 1999, which

repealed the Bombay Rent Act, 1947 was enacted by the

state legislature of Maharashtra under Entry 18 of List

II of the Seventh Schedule of the Constitution of India

to consolidate and unify the different provisions and

legislations in the State which existed pertaining to

rent and the landlord-tenant relationship. The

Statement of objects and reasons of the Rent Control

Act reads, inter alia, as under:

“1……At present, there are three different rent control laws, which are in operation in this State……All these three laws have different provisions and the courts or authorities which have the jurisdiction to decide matters arising out of these laws are also not uniform. The Procedures under all the three laws are also different in many of the material aspect.

2. Many features of the rent control laws have outlived their utility. The task, therefore, of unifying, consolidating and amending the rent control laws in the State and to bring the rent control legislation in tune with the changed circumstances now, had been engaging the attention of the Government……

3. In the meantime, the Central Government announced the national housing policy which

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recommends, inter alia, to carry out suitable amendments to the existing rent control laws for creating and enabling involvement in housing activity and for guaranteeing access to shelter for the poor. The National Housing Policy further recognized the important role of rental housing in urban areas in different income groups and low-income households in particular who cannot afford ownership house. The existing rent control legislation has resulted in a freeze of rent, very low returns in investment and difficulty in resuming possession and has adversely affected investment in rental housing and cause deterioration of the rental housing stock.”

On the other hand, the SARFAESI Act was enacted by the

Parliament with a view to regulate the securitisation

and reconstruction of financial assets and enforcement

of security interests against the debtor by securing

the possession of such secured assets and recover the

loan amount due to the Banks and Financial

Institutions. The statement of objects and reasons of

the SARFAESI Act reads as under:

"The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy. While banking industry in India is progressively complying with the international prudential norms and accounting practices, there are certain areas in which the banking and financial sector do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating Securitisation of financial assets of banks

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and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them. Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of non-performing assets of banks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas."

(emphasis laid by this Court)

10. The SARFAESI Act enacted under List I of the

Constitution of India thus, seeks to regulate asset

recovery by the Banks. It becomes clear from a perusal

of the Statements of Objects and Reasons of the Rent

Control Act and the SARFAESI Act that the two Acts are

meant to operate in completely different spheres. So

far as residential tenancy rights are concerned, they

are governed by the provisions of the Rent Control Act

which occupies the field on the subject.

11. The controversy in the instant case arises squarely

out of the interpretation of a decision of this Court

in the case of Harshad Govardhan Sondagar (supra). The

fact situation facing the court in that case was

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similar to the one in the instant case. The premises

which the appellants therein claimed to be the tenants

of had been mortgaged to different banks as collateral security to such borrowed amount by the

landlord/debtor. On default of payment of the borrowed

amount by the landlords/debtors, the banks made

application under Section 14(1) of the SARFAESI Act to

the Chief Metropolitan Magistrate, praying that the

possession of the premises be handed over to them in

accordance with the provisions of the SARFAESI Act.

This Court in the case of Harshad Govardhan Sondagar

(supra) held as under:

“34……In our view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore (supra) and has lost sight of the opening words of sub-section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or Section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub-Section

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(2) of Section 13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is set aside.”

(emphasis laid by this Court)

12. Mr. Pallav Shishodia, the learned senior counsel

appearing on behalf of the appellant in the appeal @

out of S.L.P. (C) No. 8060 of 2015 places reliance on

the decision of this Court in Harshad Govardhan

Sondagar (supra), to contend that prior tenancy in

respect of the mortgaged property to the Bank is

protected in terms of the Rent Control Act. The

relevant paragraphs of the decision are quoted as

under:

“25. The opening words of sub-section (1) of Section 14 of the SARFAESI Act also provides that if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of the Act, the secured creditor may take the assistance of the Chief Metropolitan Magistrate or the District Magistrate. Where, therefore, such a request is made by the secured creditor and the Chief Metropolitan Magistrate or the District Magistrate finds that the secured asset is in possession of a lessee but the

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lease under which the lessee claims to be in possession of the secured asset stands determined in accordance with 4 Section 111 of the Transfer of Property Act, the Chief Metropolitan Magistrate or the District Magistrate may pass an order for delivery of possession of secured asset in favour of the secured creditor to enable the secured creditor to sell and transfer the same under the provisions of the SARFAESI Act. Sub- section (6) of Section 13 of the SARFAESI Act provides that any transfer of secured asset after taking possession of secured asset by the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. In other words, the transferee of a secured asset will not acquire any right in a secured asset under sub-section (6) of Section 13 of the SARFAESI Act, unless it has been effected after the secured creditor has taken over possession of the secured asset. Thus, for the purpose of transferring the secured asset and for realizing the secured debt, the secured creditor will require the assistance of the Chief Metropolitan Magistrate or the District Magistrate for taking possession of a secured asset from the lessee where the 4 lease stands determined by any of the modes mentioned in Section 111 of the Transfer of Property Act.

32. When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section “any person (including borrower)”, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under the Chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken. We agree with the Mr. Vikas Singh that the words ‘any person’ are wide enough to

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include a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read subsection (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal has powers to restore 5 possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debt Recovery Tribunal comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor are not in accordance with the provisions of the Act, it cannot restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65A of the Transfer of Property Act and the lease was valid and binding on the mortgagee and the lease is yet to be determined, the Debts Recovery Tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no remedy available under Section 17 of the SARFAESI Act to the lessee to protect his lawful possession under a valid lease.”

13. The learned senior counsel contends that it is a

settled position of law that in the absence of a valid

document of lease for more than one year or in case of

an invalid lease deed, the relation of tenancy between

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a landlord and the tenant is still created due to

delivery of possession to the tenant and payment of

rent to the landlord-owner and such tenancy is deemed

to be a tenancy from month to month in respect of such

property. The learned senior counsel further places

reliance on a three Judge Bench decision of this Court

in Anthony v. K.C. Ittoop & Sons & Ors.2, wherein it was

held as under:

“....so far as the instrument of lease is concerned there is no scope for holding that appellant is a lessee by virtue of the said instrument. The court is disabled from using the instrument as evidence...

But this above finding does not exhaust the scope of the issue whether appellant is a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created.... Thus, de hors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus: All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of

2 (2000) 6 SCC 394

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possession.

When lease is 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 the court to determine whether there was in fact a lease otherwise than through such deed.”

(emphasis laid by this Court)

14. The learned senior counsel further contends that

where a lease deed or document of tenancy in respect of

the property in question is for a period exceeding one

year, but such document has not been registered, then,

by virtue of payment of rent, the relationship of

tenancy between a landlord and the tenant comes into

existence and in such cases, the tenant must be deemed

to be a tenant from month to month and the same would

amount to a tenancy from month to month. Thus, in the

instant case, the tenancy of the appellants in respect

of the property in question which is the secured asset

of the Bank being from month to month would also be

protected under the provisions of the Rent Control Act.

15. The learned senior counsel further contends that

according to the decision of this Court in the case of

Harshad Govardhan Sondagar (supra), if a person

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claiming to be a tenant or lessee either produces a

registered agreement or relies on an oral agreement

accompanied by delivery of possession, then such

tenancy/possession of the property with the appellant

as tenant needs to be protected. It is further

contended that the Harshad Govardhan Sondagar (supra)

has clearly held that the tenancy claims of the tenants

are to be decided by the Chief Metropolitan Magistrate

in accordance with any other law that may be relevant

after giving an opportunity of hearing to the persons

who claim tenancy in respect of such property. The term

“any other law that may be relevant” clearly indicates

a reference to the State Rent Protection laws, which in

the case at hand is the Rent Control Act. Thus, the

protection of the State Rent Control legislation is

also to be considered by the learned magistrate while

deciding an application filed by the Bank under Section

14 of the SARFAESI Act.

16. On the other hand, Mr. Amarendra Sharan, learned

senior counsel appearing on behalf of the respondents

in Crl.A. @ S.L.P. (Crl) Nos. 6941, 6944 and 6945 of

2015 contends that the pith and substance of the

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central enactment in the instant case, which is the

SARFAESI Act needs to be appreciated. Proper

implementation of the provisions of the SARFAESI Act is

in the larger interest of the nation. The learned

senior counsel places reliance on a Constitution Bench

decision of this Court in the case of Ishwari Khetan

Sugar Mills Pvt. Ltd. & Ors. v. State of Uttar Pradesh

& Ors.3, wherein it was held as under:

“13. If in pith and substance a legislation falls within one entry or the other but some portion of the subject-matter of the legislation incidentally trenches upon and might enter a field under another List, the Act as a whole would be valid notwithstanding such incidental trenching. This is well established by a catena of decisions [see Union of India v. H.S. Dhillon and Kerala State Electricity Board v. Indian Aluminium Co.] After referring to these decisions in State of Karnataka v. Ranganatha Reddy and Anr. Untwalia, J. speaking for the Constitution Bench has in terms stated that the pith and substance of the Act has to be looked into and an incidental trespass would not invalidate the law. The challenge in that case was to the Nationalisation of contract carriages by the Karnataka State, inter alia, on the ground that the statute was invalid as it was a legislation on the subject of interstate trade and commerce. Repelling this contention the Court unanimously held that in pith and substance the impugned legislation was for acquisition of contract carriages and not an Act which deals with inter-State trade and commerce.”

3 (1980) 4 SCC 136

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17. The learned senior counsel further contends that

the SARFAESI Act was enacted by the Parliament under

Entry 45 of List I of the Constitution of India. It is

a special Act with a special purpose and procedure laid

down for the recovery of the secured asset of the

debtor by the Bank to recover the amount due to it, and

thus, any encroachment upon this Act should not be

permitted, as it would defeat the laudable object of

the Act, which has been enacted keeping in view the

larger public interest.

18. Mr. Vikas Singh, the learned senior counsel

appearing on behalf of the respondent State Bank of

India in the appeal arising out of S.L.P. (C) No. 28040

of 2015 contends that the SARFAESI Act cannot be

allowed to fail at the hands of the present appellants,

who have no registered instrument of lease.

19. The learned senior counsel further contends that

in light of the decision of this Court in the case of

Harshad Govardhan Sondagar (supra), the present case is

barred by res judicata. He places reliance on the three

Judge Bench decision of this Court in the case of Bhanu

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Kumar Jain v. Archana Kumar & Anr.4, wherein it was

held as under:

“It is now well-settled that principles of res judicata applies in different stages of the same proceedings.

19. In Y.B. Patil (supra) it was held:

"4... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent state of that proceeding..."

20. In Vijayabai (supra), it was held:

"13. We find in the present case the Tahsildar reopened the very question which finally stood concluded, viz., whether Respondent 1 was or was not the tenant of the suit land. He further erroneously entered into a new premise of reopening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute?..."

21. Yet again in Hope Plantations Ltd. (supra), this Court laid down the law in the following terms:

"17... One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless

4 (2005) 1 SCC 787

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they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice."

20. Mr. M.T. George, the learned counsel appearing on

behalf of the Bank in the appeal arising out of S.L.P.

(C) No. 12772 of 2015 contends that the tenancy has not

been determined conclusively, as the documents produced

on record to prove the relationship of tenancy are not

registered and do not hold much water. Mr. Rajeev Kumar

Pandey, the learned counsel appearing on behalf of the

respondent Bank in the appeal arising out of S.L.P. (C)

No. 31080 of 2015 submits that the property in question

was mortgaged before it was leased. Such a lease would

thus, not entitle the lessee to stop the bank from

taking possession over the property which was mortgaged

to it.

21. The other learned counsel appearing on behalf of

other Banks in the connected appeals adopted the

arguments advanced by the aforesaid learned senior

counsel appearing on behalf of some of the Banks. It

was also contended that the appellants in the connected

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appeals have not been able to produce sufficient

documentary evidence to prove that they are tenants in

respect of the properties in question in the

proceedings under Section 14 of the SARFAESI Act and

hence, they have no locus standi to prefer the above

appeals questioning the correctness of the Order passed

by the learned Magistrate.

We have carefully considered the above rival legal

submissions made on behalf of the parties and answer

the same as hereunder:

22. The SARFAESI Act, which came into force from

21.06.2002, was enacted to provide procedures to the

Banks to recover their security interest from the

debtors and their collateral security assets as

provided under the provisions of the Act. The scope of

the Act was explained by this Court in the case of

Transcore v. Union of India & Anr.5 as under:

“12. The NPA Act, 2002 is enacted to regulate securitization and reconstruction of financial assets and enforcement of security interest and for matters connected therewith. The NPA Act enables the banks and FIs to realize long-term assets, manage problems of liquidity, asset-liability mismatch and to

5 (2008) 1 SCC 125

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improve recovery of debts by exercising powers to take possession of securities, sell them and thereby reduce non-performing assets by adopting measures for recovery and reconstruction. The NPA Act further provides for setting up of asset reconstruction companies which are empowered to take possession of secured assets of the borrower including the right to transfer by way of lease; assignment or sale. The said Act also empowers the said asset reconstruction companies to take over the management of the business of the borrower....

13. Non-performing assets (NPA) are a cost to the economy. When the Act was enacted in 2002, the NPA stood at Rs 1.10 lakh crores. This was a drag on the economy. Basically, NPA is an account which becomes non-viable and non-performing in terms of the guidelines given by RBI. As stated in the Statement of Objects and Reasons, NPA arises on account of mismatch between asset and liability. The NPA account is an asset in the hands of the bank or FI. It represents an amount receivable and realizable by the banks or FIs. In that sense, it is an asset in the hands of the secured creditor. Therefore, the NPA Act, 2002 was primarily enacted to reduce the non- performing assets by adopting measures not only for recovery but also for reconstruction. Therefore, the Act provides for setting up of asset reconstruction companies, special purpose vehicles, asset management companies, etc. which are empowered to take possession of secured assets of the borrower including the right to transfer by way of lease, assignment or sale. It also provides for realization of the secured assets. It also provides for takeover of the management of the borrower company.”

Thus, it becomes clear that the SARFAESI Act is meant

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to operate as a tool for banks and ensures a smooth

debt recovery process. The provisions of SARFAESI Act

make its purport amply clear, specifically under the

provisions of Sections 13(2) and 13(4) of the Act,

which read as under:

“13. Enforcement of Security interest.- (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4).

“(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset....”

Further, the provision under Section 35 of the SARFAESI

Act provides that it shall override all other laws,

which is quoted as hereunder:

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“35. The provisions of this Act to override other laws.- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."

Providing a smooth and efficient recovery procedure to

enable the banks to recover the Non Performing Assets

is a laudable object indeed, which needs to be ensured

for the development of the economy of the Country. What

has complicated the matters, however, is the clash of

this laudable object with another laudable object,

namely, to secure the rights of the tenants under the

various Rent Control Acts. The history of these Rent

Control Acts can be traced to as far back as the Second

World War. At that time, due to the massive inflation

and shortage of commodities, not only had the cost of

living risen exponentially, the tenants were also often

left to the mercy of the landlords as far as evictions

or prices of rent were concerned. Rent Control Acts

have been enacted by the different state legislatures

to secure the rights of the weaker sections of the

society, viz., the tenants. Justice Krishna Iyer aptly

observed in the case of Miss Santosh Mehta v. Om

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Prakash & Ors.6:

“2. Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and if evicted, will be helpless.”

23. The preamble of the Rent Control Act reads as

under:

“An Act to unify, consolidate and amend the law relating to the control of rent and repairs of certain premises and of eviction and for encouraging the construction of new houses by assuring a fair return on the investment by landlords and to provide for the matters connected with the purposes aforesaid……”

It becomes clear from a perusal of the preamble of the

Act that the ultimate object behind the enactment of

this legislation is to control and regulate the rate of

rent so that unnecessary hardship is not caused to the

tenant, and also to provide protection to the tenants

against arbitrary and unreasonable evictions from the

possession of the property. The protection of the

tenants against unjust evictions becomes even more

pronounced when examined in the light of Section 15 of

the Rent Control Act, which reads as under:

“15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay

6 (1980) 3 SCC 610

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standard rent and permitted increases.(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the, standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.”

Section 15, thus, restricts the right of a landlord to

recover possession of the tenanted premises from a

tenant.

24. When we understand the factual matrix in the

backdrop of the objectives of the above two

legislations, the controversy in the instant case

assumes immense significance. There is an interest of

the bank in recovering the Non Performing Asset on the

one hand, and protecting the right of the blameless

tenant on the other. The Rent Control Act being a

social welfare legislation, must be construed as such.

A landlord cannot be permitted to do indirectly what he

has been barred from doing under the Rent Control Act,

more so when the two legislations, that is the SARFAESI

Act and the Rent Control Act operate in completely

different fields. While SARFAESI Act is concerned with

Non Performing Assets of the Banks, the Rent Control

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Act governs the relationship between a tenant and the

landlord and specifies the rights and liabilities of

each as well as the rules of ejectment with respect to

such tenants. The provisions of the SARFAESI Act cannot

be used to override the provisions of the Rent Control

Act. If the contentions of the learned counsel for the

respondent Banks are to be accepted, it would render

the entire scheme of all Rent Control Acts operating in

the country as useless and nugatory. Tenants would be

left wholly to the mercy of their landlords and in the

fear that the landlord may use the tenanted premises as

a security interest while taking a loan from a bank and

subsequently default on it. Conversely, a landlord

would simply have to give up the tenanted premises as a

security interest to the creditor banks while he is

still getting rent for the same. In case of default of

the loan, the maximum brunt will be borne by the

unsuspecting tenant, who would be evicted from the

possession of the tenanted property by the Bank under

the provisions of the SARFAESI Act. Under no

circumstances can this be permitted, more so in view of

the statutory protections to the tenants under the Rent

Control Act and also in respect of contractual tenants

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along with the possession of their properties which

shall be obtained with due process of law.

25. The issue of determination of tenancy is also one

which is well settled. While Section 106 of the

Transfer of Property Act, 1882 does provide for

registration of leases which are created on a year to

year basis, what needs to be remembered is the effect

of non-registration, or the creation of tenancy by way

of an oral agreement. According to Section 106 of the

Transfer of Property Act, 1882, a monthly tenancy shall

be deemed to be a tenancy from month to month and must

be registered if it is reduced into writing. The

Transfer of Property Act, however, remains silent on

the position of law in cases where the agreement is not

reduced into writing. If the two parties are executing

their rights and liabilities in the nature of a

landlord-tenant relationship and if regular rent is

being paid and accepted, then the mere factum of non-

registration of deed will not make the lease itself

nugatory. If no written lease deed exists, then such

tenants are required to prove that they have been in

occupation of the premises as tenants by producing such

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evidence in the proceedings under Section 14 of the

SARFAESI Act before the learned Magistrate. Further, in

terms of Section 55(2) of the special law in the

instant case, which is the Rent Control Act, the onus

to get such a deed registered is on the landlord. In

light of the same, neither the landlord nor the banks

can be permitted to exploit the fact of non

registration of the tenancy deed against the tenant.

Further, the learned counsel for the appellants rightly

placed reliance on a three Judge Bench decision of this

Court in Anthony (supra). At the cost of repetition, in

that case it was held as under:

“But the above finding does not exhaust the scope of the issue whether the appellant was a lessee of the building. A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create

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a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, de hors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus: All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.”

26. It further saddens us to see the manner in which

the decision in the case of Harshad Govardhan Sondagar

(supra) has been misinterpreted to create this

confusion. Random sentences have been picked up from

the judgment and used, without any attempt to

understand the true purport of the judgment in its

entirety.

27. It is a well settled position of law that a word or

sentence cannot be picked up from a judgment to

construe that it is the ratio decidendi on the relevant

aspect of the case. It is also a well settled position

of law that a judgment cannot be read as a statute and

interpreted and applied to fact situations. An eleven

Judge Bench of this Court in the case of H.H.

Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur

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of Gwalior & Ors. v. Union of India7 held as under:

“It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.”

The same view was reiterated by a Division Bench of

this Court in the case of Commissioner of Income Tax v.

Sun Engineering Works (P.) Ltd.8 Further, a three Judge

Bench of this Court in the case of Union of India v.

Dhanawanti Devi & Ors.9 held as under:

“9. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what

7 (1971) 1 SCC 85 8 (1992) 4 SCC 363 9 (1996) 6 SCC 44

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logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be

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static and therefore, Judges are to employ an intelligent technique in the use of precedents……” (emphasis laid by this Court)

28. The decision of this Court rendered in the case of

Harshad Govardhan Sondagar (supra) cannot be understood

to have held that the provisions of the SARFAESI Act

override the provisions of the Rent Control Act, and

that the Banks are at liberty to evict the tenants

residing in the tenanted premises which have been

offered as collateral securities for loans on which

default has been done by the debtor/landlord.

29. As far as granting leasehold rights being created

after the property has been mortgaged to the bank, the

consent of the creditor needs to be taken. We have

already taken this view in the case of Harshad

Govardhan Sondagar (supra). We have not stated anything

to the effect that the tenancy created after mortgaging

the property must necessarily be registered under the

provisions of the Registration Act and the Stamp Act.

30. It is a settled position of law that once tenancy

is created, a tenant can be evicted only after

following the due process of law, as prescribed under

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the provisions of the Rent Control Act. A tenant cannot

be arbitrarily evicted by using the provisions of the

SARFAESI Act as that would amount to stultifying the

statutory rights of protection given to the tenant. A

non obstante clause (Section 35 of the SARFAESI Act)

cannot be used to bulldoze the statutory rights vested

on the tenants under the Rent Control Act. The

expression ‘any other law for the time being in force’

as appearing in Section 35 of the SARFAESI Act cannot

mean to extend to each and every law enacted by the

Central and State legislatures. It can only extend to

the laws operating in the same field. Interpreting the

non obstante clause of the SARFAESI Act, a three Judge

Bench of this Court in the case of Central Bank of

India v. State of Kerala & Ors.10 has held as under:

“18. The DRT Act and Securitisation Act were enacted by Parliament in the backdrop of recommendations made by the Expert Committees appointed by the Central Government for examining the causes for enormous delay in the recovery of dues of banks and financial institutions which were adversely affecting fiscal reforms. The committees headed by Shri T. Tiwari and Shri M. Narasimham suggested that the existing legal regime should be changed and special adjudicatory machinery be created for ensuring speedy recovery of the dues of

10 (2009) 4 SCC 94

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banks and financial institutions. Narasimham and Andhyarujina Committees also suggested enactment of new legislation for securitisation and empowering the banks etc. to take possession of the securities and sell them without intervention of the Court.

XXX XXX XXX

110. The DRT Act facilitated establishment of two-tier system of Tribunals. The Tribunals established at the first level have been vested with the jurisdiction, powers and authority to summarily adjudicate the claims of banks and financial institutions in the matter of recovery of their dues without being bogged down by the technicalities of the Code of civil Procedure. The Securitisation Act drastically changed the scenario inasmuch as it enabled banks, financial institutions and other secured creditors to recover their dues without intervention of the Courts or Tribunals. The Securitisation Act also made provision for registration and regulation of securitisation/reconstruction companies, securitisation of financial assets of banks and financial institutions and other related provisions.

111. However, what is most significant to be noted is that there is no provision in either of these enactments by which first charge has been created in favour of banks, financial institutions or secured creditors qua the property of the borrower. 112. Under Section 13(1) of the Securitisation Act, limited primacy has been given to the right of a secured creditor to enforce security interest vis-à-vis Section 69 or Section 69A of the Transfer of Property Act. In terms of that sub-Section, a secured creditor can enforce security interest without intervention of the Court

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or Tribunal and if the borrower has created any mortgage of the secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a receiver of the income of the mortgaged property or any part thereof in a manner which may defeat the right of the secured creditor to enforce security interest. This provision was enacted in the backdrop of Chapter VIII of Narasimham Committee's 2nd Report in which specific reference was made to the provisions relating to mortgages under the Transfer of Property Act.

113. In an apparent bid to overcome the likely difficulty faced by the secured creditor which may include a bank or a financial institution, Parliament incorporated the non obstante clause in Section 13 and gave primacy to the right of secured creditor vis a vis other mortgagees who could exercise rights under Sections 69 or 69A of the Transfer of Property Act. However, this primacy has not been extended to other provisions like Section 38C of the Bombay Act and Section 26B of the Kerala Act by which first charge has been created in favour of the State over the property of the dealer or any person liable to pay the dues of sales tax, etc. ……………… 116. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give overriding effect to the provisions of those Acts only if there is anything inconsistent contained in any other law or instrument having effect by virtue of any other law. In other words, if there is no provision in the other enactments which are inconsistent with the DRT Act or Securitisation Act, the provisions contained in those Acts cannot override other legislations.”

(emphasis laid by this Court)

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31. If the interpretation of the provisions of SARFAESI

Act as submitted by the learned senior counsel

appearing on behalf of the Banks is accepted, it would

not only tantamount to violation of rule of law, but

would also render a valid Rent Control statute enacted

by the State Legislature in exercise of its legislative

power under Article 246 (2) of the Constitution of

India useless and nugatory. The Constitution of India

envisages a federal feature, which has been held to be

a basic feature of the Constitution, as has been held

by the seven Judge Bench of this Court in the case of

S.R. Bommai & Ors. v. Union of India11, wherein Justice

K. Ramaswamy in his concurring opinion elaborated as

under:

“247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution,

11 (1994) 3 SCC 1

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nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism. 248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.” (emphasis laid by this Court)

32. In view of the above legal position, if we accept

the legal submissions made on behalf of the Banks to

hold that the provisions of SARFAESI Act override the

provisions of the various Rent Control Acts to allow a

Bank to evict a tenant from the tenanted premise, which

has become a secured asset of the Bank after the

default on loan by the landlord and dispense with the

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procedure laid down under the provisions of the various

Rent Control Acts and the law laid down by this Court

in catena of cases, then the legislative powers of the

state legislatures are denuded which would amount to

subverting the law enacted by the State Legislature.

Surely, such a situation was not contemplated by the

Parliament while enacting the SARFAESI Act and

therefore the interpretation sought to be made by the

learned counsel appearing on behalf of the Banks cannot

be accepted by this Court as the same is wholly

untenable in law.

33. We are unable to agree with the contentions

advanced by the learned counsel appearing on behalf of

the respondent Banks.

34. In view of the foregoing, the impugned judgments

and orders passed by the High Court/ Chief Metropolitan

Magistrate are set aside and the appeals are allowed.

We further direct that the amounts which are in deposit

pursuant to the conditional interim order of this Court

towards rent either before the Chief Metropolitan

Magistrate/Magistrate Court or with the concerned

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Banks, shall be adjusted by the concerned Banks towards

the debt due from the debtors/landlords in respect of

the appellants in these appeals. The enhanced rent by

way of conditional interim order shall be continued to

be paid to the respective Banks, which amount shall

also be adjusted towards debts of the

debtors/landlords. All the pending applications are

disposed of.

…………………………………………………………J.

[V. GOPALA GOWDA]

…………………………………………………………J.

[AMITAVA ROY] New Delhi, January 20,2016