SCA/7213/2008 2/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7213 of 2008 ===================================================== KESHAVLAL MOHANLAL MANDANI & 1 - Petitioner(s) Versus BANK OF BARODA & 5 - Respondent(s) ===================================================== Appearance : MR MRUGEN K PUROHIT for Petitioner(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1 - 6. MS NALINI S LODHA for Respondent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 24/09/2008 ORAL ORDER
1. Heard
Mr. Purohit, learned counsel for the petitioners and Ms. Lodha,
learned counsel for the respondent Bank.
2. Prima
facie, it appears that as per the contention of the petitioners,
there was pre-existing tenancy and tenancy continued even after the
mortgage till today. Whereas as per the respondent Bank, on the basis
of the title clearance certificate, the declaration by the owner and
the valuation report, the contention is that on the date of mortgage,
there was no existing tenancy in favour of the petitioners.
3.
It prima facie, appears, from the electricity bills, copy whereof is
produced at pages 100 and 101, that for the area, which is in
occupation of the petitioners, electricity connection is with the
petitioners and for the period of June and July, 2007, the
petitioners have also consumed the electricity of 216 units and the
bill is produced at page 100. Even for another connection of the very
area, the bill is produced at page 101 showing the consumption of the
electricity. Therefore, during the period of mortgage and even after
the mortgage the premises has remained in the occupation of the
petitioners. The aforesaid is coupled with all the rent receipts of
the landlord, telephone bills as well as Income-Tax Return. Under
these circumstances, it prima facie appears that on the date of the
mortgage, the petitioners had tenancy and was in occupation of the
premises admeasuring 46 x 25 ft., which is part of the premises owned
by the borrower.
4. Hence,
RULE returnable on 22.01.2009. By interim order, it is
directed that the respondent Bank shall be at liberty to proceed
under the Secularization Act (Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002), qua
the property, which is mortgaged. however, actual physical possession
of the petitioners of the area of 46 x 25 ft. situated at Survey
No.2509 of ward No.97 at Bhaktinagar Station Plot No.1, Rajkot,
shall not be disturbed. Consequently, the bank may take possession,
if permissible in law, with the occupation of the tenant and same
will be the position at the time of sale.
5. It
is further directed that the petitioners also shall not transfer or
alienate or induct any other persons in the premises as tenant.
6.
It would be open to the bank to initiate appropriate proceedings for
declaration that the petitioners were not occupying any property as
tenant on the date of the mortgage. If such proceedings are
initiated, the pendency of the present proceedings shall not operate
as a bar and the rights and contention of both the sides shall remain
open.
(JAYANT
PATEL,J.)
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