Occupier tenant
T.R. Ganesan
(Querist) 12 May 2014
This query is : Resolved
Dear Sirs,
12 May 2014
On April 2006, "A" an owner holding 900 Sq.Ft area Row House was given on Leave and Licence on a Security Deposit of Rs.5,00,000/= and entered into an agreement without mentioning the date of commencement and expiry. The rent or compensation amount is not mentioned. It is mentioned only that the occupier (Tenant) will be responsible for making payments towards Electricity and Water Charges. The Occupier has been paying regularly the Electricity and Water Charges to the authorities. "A" sold the house to one "B" and the Occupier further paid an amount of Rs. 5,00,000/= towards additional deposit to "B" and entered into L/L agreement in April, 2008, It is mutually agreed between the Occupier (Tenant) and "B" that (a) Unless and until the security deposit sum of Rs. 5,00,000/= + 5,00,000/- = Rs. 10,00,000/- is returned / refunded by the Owner/s to the Tenant the owner shall not be entitled to revoke the tenancy rights of Tenant conferred by this agreement (b) At all times, the ownership shall be with the owner and possession of the said premises shall be that of the tenant till refund of total security deposit of Rs. 10,00,000/- and (c) Till refund of security deposit or revocation of the agreement the “B” the owner shall not occupy the said premises and shall not claim any interest of any nature, whatsoever in the said premises. To take reasonable care of all singular the said premises and shall indemnify the Owner from and against any damage and / or loss, other than the ordinary use,. The Tenant shall use the said premises for residential cum office purpose only.
The Occupier (Tenant) recently came to know that the Owner "B" had taken loan from Bank and because of failure to return the loan to the Bank had approached the Court under Sarfeasi Act, and court has passed order against "B" the Owner filed an appeal or application before the DRTl. But the Occupier (Tenant) has not received any information from Bank or Court.
Under this circumstances what is the protection available to the Occupier (Tenant) and this Occupier is not at all a prty to the proceedings and he has not received any notice or communication, under this peculiar situation as to how the Occupier can take recourse to legal remedy.
T.R. Ganesan
Vijyant Nigam (09807349001)
(Expert) 13 May 2014
Bank is not duty bound to give you any notice. Bank will take symbolic possession n sell it on as is where is basis.
You have to take initiative to save ur tenancy by moving to civil court
T.R. Ganesan
(Querist) 13 May 2014
Dear Adv. Vijyant,
I thank you for your prompt and immediate rely received to my subject matter of query
"Occupier tenant". Your suggestion to take initiate to save tenancy by moving before the civil court, yes I am aware of the same but No notice or communication recd either from Bank or the Borrower the OWNER. How a cause of action can be created,particularly tangible source of information for tenant to approach court of law.
T. Kalaiselvan, Advocate
(Expert) 13 May 2014
It is to be commended that the judiciary has maintained a great balance between the rights of the Banks on the one hand and rights of the borrowers on the other hand while interpreting the provisions of SARFAESI Act, 2002. The Act talks of a right of appeal available to the borrower/guarantor/aggrieved person against the possession notice issued by the Bank under section 13 (4) of the Act.
If the appeal provision is interpreted in stricto senso, then, the borrower has to confine himself to the issue of demand.notice issued by the Bank under
section 13 (2), the issue of classification of an Account as NPA based on RBI guidelines, the issue of objections raised by the Borrower, the reply given by the Bank if any etc. issues and nothing more than that.
Technically, if the borrower is silent in questioning the possession notice issued by the Bank under section 13 (4) of the Act and chooses to question the Sale Notice, then, the borrower has to confine himself to the procedure followed by the Bank after the issuance of notice under section 13 (4) and the issues pertaining to Sale of Secured Asset. When the borrower questions the sale notice and did not question the notice under section 13 (4) within the prescribed period, the borrower has to explain as to why he has failed to question the notice under section 13 (4) within the prescribed period. In the absence of satisfactory explanation as to why the borrower has failed to question the possession notice under section 13 (4), his position to raise all kinds of objections to the Bank’s demand becomes untenable.
Finally:
Under the SARFESI Act the bank has every right to vacate the premises from the tenants even if they are not the borrowers due to the following reason: -
1. Prior to the eviction of the tenants from the premises the bank has to request the court for appointment of the receiver who is usually a lawyer who is appointed by the court to take the possession of the property -- now this receiver is bound to paste the notice of vacating the premises 10 days before the actual date of eviction of the persons on the front main gate of the property which is to be vacated whether the property is occupied by tenants or borrowers or anyone else-- this notice is known as "Possession Notice". The receiver has also to post the letter of possession notice only to the borrowers and the bank atleast 10 days before the actual date of taking possession of the notice.
2. Now the tenants [if any] is living on the premises is bound to know about the pasting of this notice which is mandatory to be pasted at the front main gate of the property -- and after the tenant comes to know about the notice he or she has to file request before the court for grant of stay against the possession notice. -- if the court deems fit that the tenants will be at great loss due to the landlord taking credit form bank without informing the tenant than the court will grant the stay.
ABDUL RAZIQUE
(Expert) 13 May 2014
well describe by T. Kalaiselvan. I appreciate Him and nothing more to add.
