SCA/4527/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4527 of 2008 With SPECIAL CIVIL APPLICATION No. 5270 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ANAND BAJAJ -PARTNER OF CHANDRABHAN DEVI - Petitioner(s) Versus DENA BANK -ASSETS RECOVERY BRANCH - Respondent(s) ========================================================= Appearance : MR MB GOHIL for Petitioner(s) : 1, MR PRANAV G DESAI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/09/2008 ORAL JUDGMENT 1. Rule. Mr.Desai waives notice of Rule for SCA/4527/2008 2/4 JUDGMENT respondent Bank. 2. With the consent of learned counsel appearing for both the sides, the matter is finally heard. 3. Both the petitions have been filed by the petitioners claiming tenancy rights over the property and they are seeking cancellation of the order passed by the Chief Metropolitan Magistrate, whereby it is ordered to provide police assistance to the Bank for taking over the possession. 4. Heard Mr.Gohil and Mr.Shelat for the respective petitioner and Mr.Desai for the respondent Bank. 5. Upon hearing the learned advocates appearing for both the sides, it appears that it is an admitted position that on the date when the mortgage was executed in favour of the respondent Bank, tenancy of the petitioners concerned were already in existence. This Court on 14.03.2008, had passed the following order: “Notice returnable on 28.03.2008. By ad- interim order, it is directed that the bank may take the possession in capacity as the owner, but the actual occupation and the use of the petitioners, as tenant shall not be disturbed till further orders. Direct service is permitted.” 6. Therefore, the possession was permitted to be taken over, but the actual occupation of the petitioner as tenant was not to be disturbed. SCA/4527/2008 3/4 JUDGMENT Thereafter, it appears that the issue is now covered by the decision of this Court (Coram: Akil Kureshi, J.) in the case of Dena Bank Vs. Sihor Nagarik Sahakari Bank Ltd. reported at 2008 (0) GLHEL 219985. As per the said decision, while exercising the power under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, ('the Act' for short) if tenancy was already in existence on the date of mortgage and the tenants are in possession of the property in the capacity as tenant, such would not warrant eviction of the tenant, but the Bank may take over the possession with the tenants and their occupation in the respective premises. Same is the fact situation in the present case. Therefore, it may not be required for this Court to set aside the order passed by the learned Magistrate under Section 14 of the Act permitting the Bank to take over the possession of the property in question which is mortgaged with it for realisation of the security interest. However, the order is to be read and clarified to the extent that under the present order of the learned Magistrate under Section 14 of the Act, the Bank will not be entitled to dispossess the existing tenant who are in occupation of the property. 7. Hence, the petitions are partly allowed to the aforesaid extent. Rule made absolute SCA/4527/2008 4/4 JUDGMENT accordingly. No order as to costs. (JAYANT PATEL, J.) *bjoy