tenant rights under sarfaesi
lawyers friend
(Querist) 30 November 2014
This query is : Resolved
We are tenant in a property since a century in Old Delhi area, however now the landlord has mortgaged the property 3 years back and got defaulted, Bank went to DRT and got an eviction order and appointed a reciever.
The last rent receipt we has was in the year 1997 ,since then the landlord has issues no receipt though rent is paid on six monthly basis , we also did not consider it as it was a very small amount.
My Question are :-
1) How my tenancy is affected and can i be evicted.
2) What remedies do i have to safeguard my family
We have filed a plea in front of the CMM who has passed the eviction order, but he denied our tenancy prima facie as we do not have rent receipts or lease agreement as such from last 17+ years, though we have electricity meter in my grand father and father name, paying house tax regularly and all other taxes.
We are so much stuck now.
Advocate. Arunagiri
(Expert) 30 November 2014
You have a good case. rent receipt is not most important. You are in possession, produce the proof for possession, and get injunction.
If the CMM had ordered eviction order, go for appeal. You have a good case.
lawyers friend
(Querist) 30 November 2014
sir cmm already pass order that we are not tenant and drt court say we not take tenant matter to hear.what we need to do.
Advocate M.Bhadra
(Expert) 01 December 2014
The Supreme Court has decided the issue about tenancy rights, under SARFAESI Act, in an elaborate judgment in Harshad Govardhan v International Asset Reconstruction Company (IARC).
In brief, the Supreme Court has held:
Secured Creditor cannot take possession of the secured premises from a lessee, under Section 14, where a registered lease is created prior to mortgage or when it is created after mortgage with the consent of the bank (i.e. under Section 65A of the TP Act);
Civil courts (or rent courts) does not have the power to decide the said issue of valid tenancy, which will exclusively be decided by the Magistrate under Section 14 of the SARFAESI Act 2002;
The Debts Recovery Tribunal, under Section 17, does not have the power to restore possession back to the lessee. Therefore, it will not be an adequate remedy;
The Magistrate will give an opportunity of hearing to the alleged lessee before taking a decision under Section 14. The said order can be challenged by way of a writ before the High Court.
Rajendra K Goyal
(Expert) 01 December 2014
Consult local lawyer and file appeal against the orders.
P. Venu
(Expert) 01 December 2014
Was the application in the CMM Court filed under Section 14 of the SARFAESI Act?
lawyers friend
(Querist) 01 December 2014
yes sir bank file under sec 14 and court appoint receiver and they come and force us to left our home.
Nadeem Qureshi
(Expert) 01 December 2014
Dear Querist
your case is very much fit for fighting, file an appeal against the eviction order of the DRT before DRAT being the third party/tenant, without due process of law the CMM have no power to evict the tenant from the premises.
the CMM have only power to provide police help to secure possession of the applicant but CMM can not decide the other things, because the tenency or eviction is civil matter then the bank have to be file a civil suit for eviction before rent controller or before civil court to get possession and not CMM.
Challenge the Order, on merit you will be win.
Feel Free to Call
R.K Nanda
(Expert) 01 December 2014
no more to add.
c.p.s. ramachary
(Expert) 01 December 2014
According to Supreme Court(in Harshad Govardan's case)it is for the Magistrate to examine the tenability / legality of the lease before rendering assistance to the secured creditor.It is wrong to approach DRAT as there will not be any such thing to challenge. Prima facie, it seems that the querriest failed to establish his tenancy rights and hence the Magistrate issued warrant for forcible removal of the querriest. [The DRT's powers to examine the legality of the lease is now conferred to the Magistrate by the above said judgment]. I fully agree with the views expressed by the expert Mr.M. Bhadra, Advocate. The querest should approach High Court (and not DRT/DRAT) if he is advised that, he has merits to do so by filing writ petition in High Court and obtain stay order, however before the querriest is forcibly removed from the secured asset sought to be enforced by the secured creditor. SARFAESI Act does not provide for restoration of possession to the querriest if has lost possession.
Dr J C Vashista
(Expert) 02 December 2014
@ Lawyers friend,
Anonymous query should not be posted, disclose your identity.
Very well advised by Mr. Bhadra and Mr. Ramachary, I agree approach High Court and obtain stay orders, be quick, time is running out againt you.
Biswanath Roy
(Expert) 02 December 2014
If the tenant has sufficient admissible direct evidence to prove that he was in possession in his tenancy before mortgaging the property to Bank the tenant cannot be dispossessed without any order from the Civil Court of jurisdiction. Hence, under such circumstances if the tenant dispossessed from his tenancy by force or by an order of the Magistrate he can claim restoration of his possession from the civil court and can obtain interim injunction upon his tenanted property.
lawyers friend
(Querist) 02 December 2014
Respected Sir,
Thanks to you all for giving your valuable advise and taking out time.
We have records of Electricity bills, water bills and telephone bills till date since 1910 and rent receipts till 1997.
We also have MCD House tax receipts till date, however as stated earlier also and as mentioned in all the judgement , we do not have any rent or lease agreement, so the title is not clear.
Some are advising to go for adverse possession as there has been no rent receipt for more than 12 years .
We are filing a review / recall petition in CMM court and if that does not solve the purpose than we will go to the high court.
Biswanath Roy
(Expert) 02 December 2014
Please. You cannot declare and claim yourself as LAWYERS FRIEND in as much as you mislead the Expert Lawyers of this portal. Look at your query, in item no.1 you said "How my tenancy is affected and can I be evicted?" Now you are saying you didn't pay monthly rent for last 12 years. Can you claim yourself as a tenant now? Your query is a mischief coated with sheer stupidity which you must refrain from in future.
Dr J C Vashista
(Expert) 03 December 2014
1. Mr. Biswanath Roy, very senior expert, has rightly observed the querist, so-called "Lawyers friend", to be a lair and mischievious person, posting this query in a hypothetical manner.
2. Besides the above observation, I could not understand the proposition of law as to how does CMM Delhi (having the jurisdiction under the provision of Cr.PC) came in the case, appointed Court Receiver of the property and ordered for eviction of the tenants?
3. The eviction case(s) from the property falls in the jurisdiction of "Rent Controller" under the provisions of Delhi Rent Control Act, 1958.
4. Under the given circumstances the tenancy is on monthly basis, accordingly rent has to be paid by 10th day of every English calander month and not once in six months to be paying (or not-at your own sweet will-as you have stated), if you are to be considered a "tenant".
5. Moreover, receiver is appointed by a Civil Judge and neither by the Rent Controller nor Chief Matropolitan Magistrate, there are separate Courts of CJ, MM & RC in Delhi.
Dr J C Vashista
(Expert) 03 December 2014
1. Mr. Biswanath Roy, very senior expert, has rightly observed the querist, so-called "Lawyers friend", to be a lair and mischievious person, posting this query in a hypothetical manner.
2. Besides the above observation, I could not understand the proposition of law as to how does CMM Delhi (having the jurisdiction under the provision of Cr.PC) came in the case, appointed Court Receiver of the property and ordered for eviction of the tenants?
3. The eviction case(s) from the property falls in the jurisdiction of "Rent Controller" under the provisions of Delhi Rent Control Act, 1958.
4. Under the given circumstances the tenancy is on monthly basis, accordingly rent has to be paid by 10th day of every English calander month and not once in six months to be paying (or not-at your own sweet will-as you have stated), if you are to be considered a "tenant".
5. Moreover, receiver is appointed by a Civil Judge and neither by the Rent Controller nor Chief Matropolitan Magistrate, there are separate Courts of CJ, MM & RC in Delhi.
Advocate. Arunagiri
(Expert) 03 December 2014
s.14 SARFAESI does not empower the Magistrate to evict a tenant. This applies to the case wherein the borrower is in possession of the property.
The tenant can be evicted only by the Rent Control Act.
Advocate. Arunagiri
(Expert) 03 December 2014
If you can establish your tenancy for 17+ years, you become the Class 1 tenant as per the Supreme Court.
If the Magistrate orders against you, you have to approach the High Court's Writ jurisdiction.
Remedy of such lessee against decision of CMM/DM under S. 14 of 2002 Act handing over possession to secured creditor lies under Arts. 226 and 227 of Constitution.
T. Kalaiselvan, Advocate
(Expert) 05 December 2014
Well advised by experts on this issue. It may be borne in mind that once the possession is lost, it will not be possible to retrieve it under the given situations, so do not vacate and handover possession before a decision by high curt is arrived at.
