HEMRAJ RATNAKAR SALIAN versus HDFC BANK LTD. & ORS.

Citation: [2021] 8 S.C.R. 529 · Decided: 17-08-2021 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Leave Granted & Dismissed
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Judgment (excerpt)

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HEMRAJ RATNAKAR SALIAN
v.
HDFC BANK LTD. & ORS.
(Criminal Appeal No(s). 843-844 of 2021)
AUGUST 17, 2021
[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002: ss. 14, 13(2) and 13(13)
– Taking of possession of secured asset by the secured creditor –
Tenant restraining from taking possession of the secured asset –
Protection of tenant from eviction, in case of default by borrower
and the landlord – On facts, grant of financial facility to borrowers
by the respondent Bank – Credit facility secured by way of mortgage
of property-secured asset in favour of the Bank – Accounts of
borrower declared as non-performing assets – Issuance of notice
u/s. 13(2) by the Bank to the borrower – Appellant’s case that he is
the tenant of the secured asset on a monthly rent since inception of
tenancy – Petition u/s. 14 by the Bank – Intervention application by
appellant-tenant seeking protection of possession of the secured
asset – Dismissed by magistrate holding that no registered tenancy
placed on record – On appeal, Held: Neither registered instrument
produced nor any good or sufficient evidence adduced to establish
the factum of tenancy – Xerox copies of rent receipts were produced
however, the first xerox copy of rent receipt itself was of the date
which is after the creation of mortgage – No claim by the borrowers
that any tenant is staying at the Secured Asset – Also third-party
valuers confirmed that the borrowers were staying at the Secured
Asset – Furthermore, according to the appellant, he is tenant-in-
sufference, thus, not entitled to any protection of the Rent Act –
Even if tenancy is claimed to be renewed in terms of s. 13(13),
consent of secured creditor was required which was not sought –
Thus, the Magistrate rightly dismissed the application.
Dismissing the appeals, the Court
HELD: 1.1 In the instant case, there is a serious doubt as
to the bona fide of the tenant, as there is no good or sufficient
evidence  to establish the tenancy of the appellant. According to
[2021] 8 S.C.R. 529
529
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
the appellant, he is a tenant of the Secured Asset from 12.06.2012.
However, the documents produced in support of his claim are
xeroxcopies of the rent receipts and the first xerox copy of the
rent receipt is of 12.05.2013 which is after the date of creation of
the mortgage. It is pertinent to note here that the Borrowers
have not claimed that any tenant is staying at the Secured Asset.
At the time of grant of facility, third-party valuers had also
confirmed that the Borrowers were staying at the Secured Asset.
The appellant pleaded tenancy from  12.06.2012  to 17.12.2018.
This is not supported by any registered instrument. Further, even
according to the appellant, he is a “tenant-in-sufferance”,
therefore, he is not entitled to any protection of the Rent Act.
Even if the tenancy has been claimed to be renewed in terms of
Section 13(13) of the SARFAESI Act, the Borrower would be
required to seek consent of the secured creditor  for transfer of
the Secured Asset by way of sale, lease or  otherwise,  after
issuance of the notice under Section 13(2) of the SARFAESI Act
and, admittedly, no such consent has been sought  by  the
Borrower  in  the instant case. [Para 14][535-F-H; 536-A-B]
Harshad Govardhan Sondagar v. International Asset
Reconstruction Co. Ltd. & Ors. (2014) 6 SCC 1 : [2014]
11 SCR 605; Kanaiyalal Lalchand Sachdev v. State of
Maharashtra (2011) 2 SCC 782 : [2011] 2 SCR 602;
Bajarang Shyamsunder Agarwal v. Central Bank of
India & Anr. (2019) 9 SCC 94 : [2019] 12 SCR 352 –
referred to.
Case Law Reference
[2014] 11 SCR 605
referred to
Para 9
[2011] 2 SCR 602
referred to
Para 9
[2019] 12 SCR 352
referred to
Para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.843-844 of 2021.
From the Judgment and Order dated 30.12.2015 & 06.01.2016 of
the Chief Metropolitan Magistrate, Esplanade, Mumbai, in Case C.C.
No.381/SA/2014.
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Garvesh Kabra, Adv. for the Appellant.
Ateev Mathur, Gagan Gupta, Ms. Jagriti Ahuja, Harshvardhan
Jha, Mrs. Yugandhara Pawar Jha, Aman Pathak, Advs. for the
Respondents.
The Judgment of the Court was delivered by
S.ABDUL NAZEER, J.
1. Leave granted.
2. These appeals are directed against the Orders dated 30.12.2015
and 06.01.2016 in Case C.C. No.381/SA/2014 passed by the Chief
Metropolitan Magistrate, Esplanade, Mumbai, reject
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