E ALAVUDEEN vs HDFC BANK on 8 December 2023

O R D E R

1. The Appellant herein preferred this Appeal under Rule 5 (5) of Debts Recovery Tribunal (procedure) Rules, 1993 in an order passed by the Ld. Registrar of this Tribunal under Rule 5 (4) of Debts

Recovery Tribunal (procedure) Rules, 1993, read with section 17 (7) of the SARFAESI Act, in SA (Diary) No.1818/2023.

2. The Appellant herein stated that the Application filed under section 17 (1) of the SARFAESI Act in challenging the measures initiated by the Respondent Bank under section 14 (1) of the SARFAESI Act wherein, the Appellant has challenged the order passed by the Ld. Chief Judicial Magistrate, Karur in Cr.M.P.No.3136/2023 by its order dated 26.04.2023.

3. It is the version of the Appellant that, the Appellant is a Tenant occupying one of the shop in which a Garment business is running by the Appellant. The Appellant entered in to a Rental Agreement with the 2nd Respondent for a period of 2 years on 01.07.2018 and has paid a sum of Rs.1.00 lakh as advance and fixed a monthly rent as Rs.5000/- per month for a period of 2 years and subsequently, the Lease Period was extended by the 2nd Respondent till date by way of Tenancy at Will and therefore, the Appellant is in possession of the Garment Shop to an extent of 300 sq. ft. of the building.

4. It is the further version of the Appellant that the Appellant came in to the notice of the order passed by the Ld. CJM, Karur only when the Advocate Commissioner appointed by the Ld. CJM, accompanied by the 1st Respondent visited the place of the occupancy of the Garment Shop of Appellant wherein, it is brought to the knowledge of the Appellant that the entire building including the Garment Shop is the mortgaged property of the 1st Respondent Bank, wherein, the 2nd Respondent having obtained a loan and the property was given as collateral security, which is not in the knowledge of the Appellant and hence, an Application under section 17 (1) of the SARFAESI Act is filed before this Hon’ble Tribunal as an aggrieved person being a Tenant in the property.

5. It is the further version of the Appellant that the Appellant having filed an Application under section 17 (1) of the SARFAESI Act in challenging the order passed by the Ld. CJM, Karur before this Hon’ble Tribunal, the Registry of the Hon’ble Tribunal is declined to register the Application on the ground that there is a discrepancy in the Shop Number mentioned in the Lease Deed and the Demand Notice issued by the 1st Respondent Bank and the schedule of mentioned property mentioned in the order passed by the Ld. CJM, Karur and accordingly, having passed an order under Rule 5 (4) of the DRT Procedure Rules by the Ld. Registrar, DRT, Coimbatore who declined to register the Application filed by the Applicant and hence, the Appeal is preferred by the Appellant under Rule 5 (5) of the DRT procedure Rules.

6. The Appellant also obtained an order from the Hon’ble High Court of Madras (Madurai Bench) in W.P. MD.25531/2023 wherein, the Hon’ble High Court of Madras also having directed to consider the Application filed by the Applicant in SA (Diary No.1818/2023) and therefore, the Appeal may be considered by this Hon’ble Tribunal and prayed for passing an appropriate order in this Appeal.

7. This Tribunal having considered the Appeal in the facts and circumstances is the view that, the objection raised by the Registry is only in respect of the description of the property where it appears to have the Door Number is mentioned is differed from the schedule of property mentioned in the Demand Notice issued by the 1st

Respondent Bank and in the impugned order by the Ld. CJM, passed under section 14 of the SARFAESI Act.

8. The Appellant having stated that the Appellant is only occupying a shop amongst the several number of shops in the building, the Shop Number also is mentioned and hence, the entire schedule of property is not considered for the purpose of the lease agreement in the case. Be as it may so, the Appellant is required to be given a chance to hear the case by this Tribunal.

9. The Appellant having filed an Application under section 17 (1) of the SARFAESI Act as a Tenant and claiming a Tenancy right, this Tribunal is bound to examine the same and to determine the Tenancy in terms of section 17 (4-A) for which it is necessary that the Application required to be taken on file and considering the scope of section 17 (4-A) the Tribunal is the view that notwithstanding the discrepancy mentioned in the shop in occupancy by the Applicant, a proper hearing by this Tribunal can alone determine the Tenancy in this case and therefore, the order passed by the Ld. Registrar is overruled and set aside by this Tribunal.

10. The Registry is directed to number this SA (Diary No.1818/2023) and to place before this Tribunal for further proceedings in this case.

(Dictated to my PA directly on the Computer, corrected and pronounced by me on this the 08th day of December, 2023).

[M.P. BALASUBRAMANIAN] PRESIDING OFFICER