SHRI R GANESAN vs THE RECOVERY OFFICER II on 12 July 2022

O R D E R

1. The Appellant filed this Appeal under section 30 of the SARFAESI Act being a third party having made a claim petition in IA No.461/2020 and challenging the order passed by the Ld. Recovery Officer-II in IA No.461/2020 in R.P.No.207/2008 in DRC.No.206/2008 in TA No.138/2002.

2. The Ld. Counsel for the Appellant submitted that the Appellant herein claim over the right of the property wherein, the DRC No.206/2008 having issued by this Tribunal and the Appellant’s claim is that the lease hold right of the property is on him and therefore, the property shall not be liable for sale by the Recovery proceedings initiated by the Recovery Officer and the Applicant is in possession of the property.

3. Per contra, the Ld. Counsel for the 3rd Respondent/FI submitted that the Appeal shall not survive on the ground that the subject property was mortgaged with the certificate holder bank M/s.Karur Vysya Bank even prior to the lease deed dated 19.06.2007 and hence, the same shall not bind the certificate holder bank or the assignee financial institution i.e., the 3rd Respondent herein and as such the Appeal is liable to be dismissed by this Tribunal.

4. This Tribunal having heard the arguments of the Ld. Counsels for the parties and on perusal of the record, is the view that the Appeal shall not survive for the reason that a third party claimant cannot stake a claim over the mortgaged property to the bank more specifically the 3rd Respondent Bank become the certificate creditor bank and the 2nd Respondent being the assignee. The Lease Deed in favour of the Appellant has no force in law as the Lease Deed itself is an unregistered one the 3 Appeal 01/2021 same, if at all any rights claim by the Applicant shall be subject to the mortgage right of the 2nd Respondent Bank.

5. The Ld. Recovery Officer in his findings at para 17 of the order clearly held that the lease hold right claimed by the Appellant is not sustainable and valid in law for the reason that the lease agreement is not registered and as such an unregistered lease Deed is not having any force in the eye of law and even otherwise the same shall be subject to the mortgage right of certificate holder bank and now with the assignee financial institution. Furthermore, the property is also sold under the SARFAESI Act through an e-auction dated 30.09.2020 and as such the claim of the petitioner is no more tenable and it is infructuous. Accordingly, the petition was dismissed by the Ld. Recovery Officer-II of this Tribunal.

6. It is also observed by this Tribunal that the Appellant having filed the SARFAESI Application in SA No.481/2020 and SA No.163/2022 claimed a right of Adverse Possession of the Schedule mentioned property whereas the Appellant herein claiming a lease hold rights over the property. Hence, this Tribunal finds that, there is no reliability of the statement made by the Appellant. The order passed in SA No.481/2020 and SA No.163/2022 may also be considered as part can parcel of this order.

7. This Tribunal having heard the arguments in the SA filed by the Appellant in SA No.481/2020 and SA No.163/2022 and having held that the said SAs are not maintainable and passed a detailed order which resulted in dismissal of SAs, this Tribunal hold that there is no valid reasons to set aside the order passed by Ld. Recovery Officer which is impugned in the present Appeal. Accordingly, this Appeal fail and dismissed with no order to costs. A copy of the order be communicated to all the parties concerned by the Registry of this Tribunal. (Dictated to my PA directly on the computer, corrected and pronounced by me in the Open Tribunal on this Day 12th of July, 2022) Sd/-

[M.P. BALASUBRAMANIAN] PRESIDING OFFICER