ORDER
S. Sardar Zackria Hussain, J.
1. Both the revisions are filed against the order of the Debt Recovery Tribunal in DRC No. 205 of 2002 in O.A. No. 2014 of 2001 dated 21.7.2004 and the revision petitioners are third parties in respect of the proceedings pending before the first respondent, the Recovery Officer DRT-II.
2. The revision petitioner in C.R.P. No. 1821 of 2004, viz., N. Vasudevan claims that he and his family members have been in possession of the entire second floor of the building and premises bearing door No. 4/10, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Chennai-39 as a tenant since 1996 under the defaulter/borrower in D.R.C. No. 205 of 2002.
3. The revision petitioner in C.R.P. No. 1822 of 2004, viz., T.G. Gurunathan claims that he and his family members have been in possession of the entire ground floor of the building and premises bearing door No. 4/10, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Chennai-39 as a tenant since 1996 under the defaulter/borrower in D.R.C. No. 205 of 2002.
4. After the auction sale of the property, the auction purchasers, viz., the respondents 3 to 5 herein declared as successful bidders in the said auction proceedings and the said auction purchasers attempted to evict both the revision petitioners, who are the tenants under the defaulter/borrower. Therefore, suit O.S. No. 1709 of 2004 by the revision petitioner N. Vasudevan and the suit O.S. No. 1710 of 2004 by the revision petitioner T.G. Gurunathan were filed in the VI and VII Assistant Judge, City Civil Court, Chennai respectively. In O.S. No. 1710 of 2004, interim injunction was granted restraining the defendant in that suit from eviction of the revision petitioner T.G. Gurunathan in respect of the premises occupied by him.
5. The revision petitioner T.G. Gurunathan, is a senior citizen aged about 70 years and he has informed the Recovery Officer through his advocate and requested not to evict him. Despite such request the Recovery Officer declared that he has got power to dispossess him. The Recovery Officer under the instigation of the borrowers, passed orders directing the revision petitioners not to obstruct the handing over both the said premises as per order dated 21.7.2004. The order was received by the revision petitioners only on 30.7.2004. So, against that order, on 2.8.2004, the very next working day, both the revision petitioners filed appeal. The Recovery Officer refused to grant further time. With the help of the advocate-commissioner appointed by the Recovery Officer, the respondents have forcibly evicted both the revision petitioners from the premises occupied by them as tenants under the defaulter/borrower in DRC No. 205 of 2002. Such order is challenged in both the revision petitions.
6. The learned counsel for the revision petitioners in both the revision petitions vehemently argued that the Recovery Officer has no power to appoint advocate-commissioner and as such, the eviction of both the revision petitioners from the premises, viz., second floor and ground floor of the building and premises bearing door No. 4/10, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Chennai-39 with the help of advocate-commissioner is improper and illegal. In this regard, the learned counsel for the revision petitioners by referring the lease agreement dated 10.4.1996 entered into between the revision petitioner N. Vasudevan and the defaulter/borrower, family card, identity card and bona fide certificate relating to the revision petitioner N. Vasudevan and also the lease agreement dated 15.8.1997, telephone bill and gas agency bill issued to the revision petitioner T.G. Gurunathan, further argued that inasmuch as the revision petitioners are tenants under defaulter/borrower, the order of the Recovery Officer, pursuant to which the eviction of both from the premises occupied by them, is incorrect.
7. The learned counsel for the revision petitioners further pointed out that in the suit O.S. No. 1710 of 2004 filed by the revision petitioner T.G. Gurunathan temporary injunction has been granted from evicting in respect of the premises occupied by him, and in this regard, the learned counsel relied on the decision in A. Stephen Samuel v. Union of India, , in which a Division Bench of this Court has held setting aside the eviction order of the Recovery Officer evicting lawful tenants under the borrower since they are not defaulters to bank and the tenants had been inducted by borrower before issuance of recovery certificate. It is also held that Rule 40 of Income Tax (Certification Proceeding) Rules contemplates only symbolical delivery and not actual delivery and the auction purchaser is entitled only to symbolical delivery and not actual possession. It is further held that under Clause 15 of Letters Patent, Recovery Officer lacked jurisdiction totally in passing order of eviction which order suffers from error apparent on the face of record.
8. The learned counsel for the second respondent Punjab National Bank argued that the revision petitioners were not tenants as claimed when the attachment of the properties of the defaulter/borrower were attached. As regards the lease agreements said to have been executed between the revision petitioners and the borrower, viz., the lease agreement dated 10.4.1996 with the revision petitioner N. Vasudevan and the lease agreement dated 15.8.1997 with the revision petitioner T.G. Gurunathan, it is submitted that both the agreements were unregistered and it is nothing to show that the tenancy continues even after the expiry of lease period stipulated in the said agreements. As regards the payment of Rs.1/- lakh by way of advance in respect of agreement dated 10.4.1996, it is argued that such payment of advance of Rs.1/- lakh in cash is not acceptable. Though the family card, identity card and bona fide certificate in respect of the earlier revision petitioner in C.R.P. No. 1821 of 2004 and the telephone bill, gas agency bill and letter in respect of the later revision petitioner in C.R.P. No. 1822 of 2004 have been filed, it is further submitted by the learned counsel for the second respondent bank that these documents had been created for the purpose of the case and after lease period is over in respect of both the revision petitioners. For the relevant period no documents had been filed to show that they were in occupation of the respective premises as claimed, viz., the revision petitioner Vasudevan in the second floor and the revision petitioner Gurunathan in the ground floor of the building owned by the borrower/defaulter and the documents filed are related only after the purchase of the property in the auction by the auction purchasers, viz., respondents 3 to 5. As regards the suit O.S. No. 1709 of 2004 filed by the revision petitioner Vasudevan and the suit O.S. No. 1710 of 2004 filed by the revision petitioner Gurunathan both filed on 7.4.2004, according to the learned counsel for the second respondent bank, they have been filed to make out the case and show that they have been in occupation of the said premises for quite a long time as tenants under the borrower/defaulter.
9. The learned counsel for the second respondent further submitted relying on the Schedule II Rule 11(1), (3) and (4) of the Procedure for Recovery of Tax that when the properties, subject matter of the revisions, were attached, no such claim was made by the revision petitioners herein as tenants under the defaulter/borrower.
10. The learned counsel for the respondents 3 to 5, who the are the auction purchasers of the property, subject matter of the revisions, in supporting the argument advanced by the learned counsel for the second respondent Punjab National Bank, further submitted that the claim of the revision petitioners as tenants under the defaulter/borrower have been initiated only to defeat the rights of the auction purchasers from enjoying the properties purchased by them in the auction held by the second respondent bank.
11. The revision petitioners in both the revisions caused lawyer notice dated 3.7.2004 to the first respondent, the Recovery Officer claiming that both the revision petitioners are statutory tenants of entire second floor and the ground floor premises situated at No. 10/4, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Perambur under the defaulter/borrower Ganesh Kumar, which is subject matter of the proceedings of DRC No. 205 of 2002 and the successful bidder in the public auction in the proceedings, viz., the third respondent herein since attempted to evict them, they have filed the suit O.S. Nos. 1709 and 1710 of 2004 against Yahabudeen and Ganesh Kumar for permanent injunction against the auction purchaser Yahabudeen, the third respondent herein and the auction purchaser entered appearance in the suit O.S. No. 1709 of 2004 and took time to file counter in the injunction petitions, which have been posted to 16.7.2004. In the lawyer notices it is stated that the eviction notices addressed to Ganesh Kumar have been affixed at the said building where both the revision petitioners are residing as tenants in the second floor and in the ground floor premises. Further, in the notice sent for the revision petitioner Gurunathan it is also stated that in the suit O.S. No. 1710 of 2004 interim injunction was granted against Yahabudeen, the third respondent herein and the revision petitioners have also informed that the tenancy is governed by the Tamil Nadu Buildings (Lease and Rent Control) Act.
12. As per order dated 19.7.2004 by the Recovery Officer in the matter of P.Ganesh Kumar and Mrs. G. Priya residing at Old Door No. 4, New Door No. 10, Balamurugan Street, B.B. Road, Vyasarpadi, Chennai-39, Thiru N. Nanda Kumar, advocate, Chennai has been appointed as advocate-commissioner to evict the occupants, viz., Mr. P. Ganesh Kumar and Mrs. G. Priya or anybody acting on their behalf from the demised property and hand over the vacant possession to the auction purchaser and further directed that he shall discharge all the functions of Recovery Officer for the above purpose. In the order it is stated that at the sale by public auction held on 4.3.2004, the said property was purchased by the respondents 3 to 5 herein and the sale was duly confirmed on 7.4.2004. It is further stated that both the borrowers were directed to hand over vacant possession to the auction purchaser as per the orders dated 11.5.2004 and 11.6.2004. Since they refused to receive the letters sent by registered post, another letter was sent on 29.6.2004 directing them to hand over possession before 14.7.2004 to the auction purchasers, viz., respondents 3 to 5 herein and which are pasted on the property and since P.Ganesh Kumar and Mrs. G. Priya had not complied with the above orders, the advocate-commissioner was appointed for the above said purpose.
13. The Recovery Officer has stated in the order dated 21.7.2004 that the revision petitioners in both the revision petitions shall not obstruct handing over vacant possession of the property. In the said order it is mentioned that the property was attached on 13.8.2003, during which time, there were no tenants in the premises and subsequent to such attachment, the property was brought for auction sale on 9.10.2003 and subsequently again on 4.3.2004 at which time, the property was sold. The revision petitioners have not represented that they are tenants of the property earlier and no materials have been placed before the Recovery Officer to treat them as tenants of the property and so there are grounds to consider that they are acting at the instigation of the defaulter/borrower, which made the Recovery Officer to pass order under Rule 42 of the Income-tax Act(Certificate Proceedings) Rules, 1962.
14. The lease agreement said to have been executed between the revision petitioner Vasudevan and the defaulter/borrower Ganesh Kumar is unregistered dated 10.4.1996. In the lease agreement, the address of Ganesh Kumar is mentioned as No. 5/138, Bharathi Nagar, Sipcot, Ranipet and the address of the revision petitioner Vasudevan is mentioned as III Main Road, Vallalar Nagar, Pattabiram, Chennai. As per lease agreement dated 10.4.1996, the revision petitioner Vasudevan had taken possession of the property at No. 4, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Madras-39 owned by the lessor Ganesh Kumar from 15.8.1997 for residential purpose for a period of 11 months. Further, as per lease agreement dated 10.4.1996, it is stated that the lessor, viz., Ganesh Kumar received Rs.1/- lakh in cash as interest free advance rent deposit and the rent payable for the premises is also agreed as Rs.1,500/- per month. The schedule of property is mentioned as entire second floor of the building to the extent of 800 square feet situated at No. 4, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Madras. In the lease agreement dated 10.4.1996 entered into between the revision petitioner Vasudevan and Ganesh Kumar, one of the two attestors is one Chandrasekar.
15. The revision petitioner Vasudevan has filed Xerox copy of Family Card to show that he has been in occupation of the said portion as tenant under the lessor Ganesh Kumar from 15.8.1997. The family card discloses the address of the revision petitioner Vasudevan is at Door 1/2, Srinivasan Street, Chennai-11. The family card was issued for the period from 1998-2003. As per the change of address noted in the said family card, the address of the premises of the door bearing No. 10, Balamurugan Street, Chennai-39 is mentioned with effect from 2.5.2001. In the family card it is stated that the revision petitioner Vasudevan has no gas connection. Xerox copy of the family card related to entries as stated above, viz., first and last pages alone has been filed. The Xerox copy of the relevant entries in the family card has not been filed to show that after such change of address, as to whether ration articles have been obtained by the revision petitioner Vasudevan from the ration shop. Further, letters of correspondence, voters list have not been filed that the revision petitioner Vasudevan has been in occupation of the said premises as tenant under Ganesh Kumar from 15.8.1997, as per the lease agreement dated 10.4.1996. The identity card in respect of vasudevan has been issued only on 23.7.2003. Bona fide certificate undated has been issued by Correspondent of Vivekananda Vidyalaya stating that the son and daughter of Vasudevan are studying in their school and the address of the father Vasudevan is mentioned as 10 Balamurugan Street, Chennai-39.
16. As regards the revision petitioner T.G. Gurunathan, the lease agreement said to have been executed between the revision petitioner T.G. Gurunathan and the defaulter/borrower Ganesh Kumar is unregistered dated 15.8.1997. In the lease agreement dated 15.8.1997, the address of Ganesh Kumar is mentioned as No. 5/138, Bharathi Nagar, Sipcot, Ranipet and the address of the revision petitioner T.G. Gurunathan is mentioned as No. 10 Masigam village, Masigam village post, North Arcot District. As per lease agreement dated 15.8.1997, T.G. Gurunathan had taken possession of the property at No. 4, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Madras-39 owned by the lessor Ganesh Kumar from 15.8.1997 for residential purpose for a period of 11 months. Further, as per lease agreement dated 15.8.1997, it is stated that the lessor, viz., Ganesh Kumar received Rs.1,50,000/- in cash as interest free advance rent deposit and the rent payable for the premises is also agreed as Rs.2,000/- per month. The schedule of property is mentioned as entire built up area of the ground floor to the extent of 1,300 square feet of the building situated at No. 4, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Madras. In the lease agreement dated 15.8.1997 entered into between T.G. Gurunathan and Ganesh Kumar, one of the two attestors is one Chandrasekar.
17. The revision Petitioner T.G. Gurunathan has filed Xerox copy of Telephone Bill, Gas Agency bill and letter. In the telephone bill, the address of the revision petitioner Gurunathan is mentioned as Door 4, Balamurugan Street, Vyasarpadi, BB Road, Opp. MPM Street, Chennai-39. The period of the bill is from 20.6.2004 to 19.7.2004. The Xerox copy of Suny Gas Agency bill is dated 16.7.1904 for the supply of gas cylinder and the address of the revision petitioner Gurunathan is given as No. 4, Bala Murugan Street, Near BB Road, Vyasarpadi, Chennaui 39. Xerox copy of the same Suny Gas Agency letter is dated 10.9.1999, in which the address of the revision petitioner Gurunathan is mentioned as No. 4, Balamurugan Street, Chennai-11. Further letters of correspondence, voters list have not been filed that the revision petitioner Gurunathan has been in occupation of the said premises as tenant under Ganesh Kumar right from the time of lease agreement dated 15.8.1997.
18. As rightly submitted by the learned counsel for the second respondent, Schedule II Rule 11(1), (3) and (4) of the Procedure for Recovery of Tax reads thus:-
“R.11.Investigation by Tax Recovery Officer-(1) Where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection:
Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designatedly or unnecessarily delayed.
(2) x x x x x
(3) The claimant or objector must adduce evidence to show that –
(a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears, or
(b) (in the case of movable property) at the date of the attachment, he had some interest in, or was possessed of, the property in question.
(4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the defaulter at the said date, it was in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale.”
19. As rightly submitted, the properties, viz., second floor and ground floor of the building owned by the borrower/defaulter, subject matter of the revisions, were attached on 13.8.2003. There is nothing to show that the revision petitioners made objections to the Recovery Officer for the attachment of the properties claiming that they are tenants under the defaulter/borrower and even before the attachment, it appears, they have not claimed or informed that they are the tenants of the properties. Even when it was brought for auction sale on 9.10.2003 and again on 4.3.2004, the revision petitioners have not represented that they are tenants of the properties earlier and no materials have been placed before the Recovery Officer to treat them as tenants of the properties. Only after the properties were sold on 4.3.2004, in the auction sale, the revision petitioner Vasudevan filed the suit O.S. No. 1709 of 2004 in respect of the second floor of the building and the revision petitioner Gurunathan filed the suit O.S. No. 1710 of 2004 in respect of the ground floor of the building both on 7.4.2004 for permanent injunction against the third respondent herein in both the suits from evicting them from the properties, viz., second floor of the building to the extent of 800 square feet situated at old No. 4, New No. 10, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Chennai-39 and entire ground floor of the building to the extent of 1300 square feet situated at Old No. 4, New No. 10, Balamurugan Street, Parthasarathy Nagar, Vyasarpadi, Chennai-39. O.S. No. 1709 of 2004 was filed by the revision petitioner Vasudevan that as per lease agreement dated 10.4.1996, he is a tenant under the borrower/defaulter Ganesh Kumar and rental receipts have also been issued by the said owner. O.S. No. 1710 of 2004 was filed by the revision petitioner Gurunathan that as per lease agreement dated 15.8.1997, he is a tenant under the borrower/defaulter Ganesh Kumar and rental receipts have also been issued by the said owner. Though it is stated so, the rental receipts had not been produced in both the suits. It is averred that the first defendant, Recovery Officer directed the revision petitioners to vacate from the properties in their occupation. Both the suits were filed only on 7.4.2004, after the date of auction sale on 4.3.2004, in which the respondents 3 to 5 herein are the successful bidders/auction purchasers.
20. The tenancy set up by the revision petitioners pursuant to the lease agreements relied on by them, according to them, they have paid Rs.1,00,000/- and Rs.1,50,000/- respectively in cash as interest free advance rent deposit and the rent payable for the premises is also agreed as Rs.1,500/- and Rs.2,000/- per month respectively, is unacceptable, since there is nothing to show that such payments were made.
21. In respect of the revision petitioner Vasudevan, as per lease agreement dated 10.4.1996, his address is given as III Main Road, Vallalar Nagar, Pattabiram, Chennai. As per agreement which is dated 10.4.1996, the lessee, viz., Vasudevan had taken possession of the property from 15.8.1997 and clause (1) of the agreement specifies that the lease is for a period of 11 months commencing from 10.4.1996. In the family card issued for the period 1998-2003, the address of the revision petitioner Vasudevan is given as at Door No. 1/2, Srinivasan Street, Chennai-11 and as per the change of address noted in the family card, the address of the premises of the door bearing No. 10, Balamurugan Street, Chennai-39 is mentioned with effect from 2.5.2001. The Xerox copy of the front and last page of the Family Card alone has been filed. The Xerox copy of the relevant entries in the family card has not been filed to show that after such change of address as to whether ration articles has been obtained by the revision petitioner Vasudevan from the ration shop and as to whether the said revision petitioner has been in occupation of the premises from 15.8.1997. The identity card dated 23.7.2003 and bona fide certificate undated do not help the case of the revision petitioner that he has been in possession of the second floor of the building as a tenant from 15.8.1997 or from 10.4.1996, the date of lease agreement. Though it is claimed that he is in occupation of the said premises as early as from 10.4.1996 or from 15.8.1997, the relevant entries in the voters list that he exercised vote in the election and caused his vote from that address and also the letters of correspondence to the said address have not been produced. All these clearly go to show that the lease agreement dated 10.4.1996 has come into picture only to set up false case that he is in possession of the said property from 15.8.1997 or from 10.4.1996. Therefore, the revision petitioner Vasudevan has not made out the case and there is nothing to show that any objection was made by the revision petitioner Vasudevan when the property was attached by the Recovery Officer.
22. In respect of the revision petitioner T.G. Gurunathan, as per lease agreement dated 15.8.1997, his address is given as No. 10, Masigam village, Masigam village post, North Arcot District. As per agreement which is dated 15.8.1997, the lessee, viz., T.G. Gurunathan had taken possession of the property from 15.8.1997 and clause (1) of the agreement specifies that the lease is for a period of 11 months commencing from 15.8.1997. In the telephone bill, the address of the revision petitioner Gurunathan is mentioned as Door No. 4, Balamurugan Street, Vyasarpadi, BB Road, Opp. MPM Street, Chennai-39. The period of telephone bill is from 20.6.2004 to 19.7.2004. The Xerox copy of Suny Gas Agency bill is dated 16.7.2004 for the supply of gas cylinder and the address of the revision petitioner Gurunathan is given as No. 4, Bala Murugan Street, Near BB Road, Vyasarpadi, Chennai-39. Xerox copy of the same Suny Gas Agency letter is dated 10.9.1999, in which the address of the revision petitioner Gurunathan is mentioned as No. 4, Balamurugan Street, Chennai-11. Further letters of correspondence, voters list have not been filed that the revision petitioner Gurunathan has been in occupation of the said premises as tenant under Ganesh Kumar. The telephone bill and gas agency bill and letter do not help the case of the revision petition Gurunathan that he has been in possession of the ground floor of the building as a tenant from 15.8.1997 as per the lease agreement. Though it is claimed that the revision petitioner Gurunathan is in occupation of the said premises as early as from 15.8.1997, the relevant entries in the voters list that he exercised vote in the election and caused his vote from that address and also the letters of correspondence to the said address have not been produced. All these clearly go to show that the lease agreement dated 15.8.1997 has come into picture only to set up false case that he is in possession of the said property from 15.8.1997. Therefore, the revision petitioner Gurunathan has not made out the case and there is nothing to show that any objection was made by the revision petitioner Gurunathan when the property was attached by the Recovery Officer.
23. Both the revision petitioners failed to establish that they are the tenants as claimed under the defaulter/borrower even before the issuance of recovery certificate or the attachment of the properties as held by the Division Bench of this Court in (cited supra).
24. As regards the appointment of advocate-commissioner for handing over the properties to the auction purchasers, viz., the respondents 3 to 5 herein, after vacating the occupants, viz., Mr. P. Ganesh Kumar and Mrs. G. Priya or anybody acting on their behalf, if necessary, with the help of police, it is not open to the revision petitioners, who are third parties claiming themselves as tenants under the defaulter/borrower to challenge such order of appointment of advocate-commissioner for the said purpose.
25. Both the revision petitioners miserably failed to establish that they are tenants under the defaulter/borrower as claimed by them. The suits as well as the revisions have been filed instigated by the defaulter/borrower as rightly argued by the respondents to delay the auction purchasers from enjoying the fruits as per their purchase and from enjoyment of the properties. Further admittedly, both the revision petitioners have been evicted and as such, nothing survives pursuant to the order under challenge.
26. In the result, in the light of the discussions made above, both the revision petitions fail and are dismissed. No costs.