Radhakrishnan and ors. Vs. Rajasekaran Rajee and ors. - Court Judgment

Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. ordersomasundaram, j.1. the respondents 1, 2 and 4 in rcop. no. 1 of 1981 on the file of the rent controller, tindivanam, who failed before both the rent controller and the appellate authority are the petitioners in this civil revision petition. the landlord filed rcop. no. 1 of 1981 on the file of the rent controller, tindivanam, against the petitioners herein and others for eviction under sections 10(2)(ii)(b) and 14(1)(b) of the tamil nadu buildings (lease and rent control) act (18 of 1960), (hereinafter referred to as the act), the case of the landlord in rcop. no. 1 of 1981 is as follows;- the petition mentioned premises consisting of two items belongs to the respondent herein and it was leased out to one ravanappa naidu, 40 years prior to the filing of the rcop. the said tenant, ravanappa naidu, died 15 years prior to the filing of the petition and after his death, the respondents 1 to 4 in the rcop., who are the heirs of ravanappa naidu continued as tenants of the deceased ellusami chettiar, the landlord, in respect of the demised premises. the monthly rent for both the portions of the building is rs.12/-. both the items of the demised premises constitute one building having two door numbers. both the portions are thatched houses and they are very old. the landlord requires the building' for demolition of the thatched houses and for reconstruction. the landlord has obtained the necessary sanction from the municipality for reconstructing the building after demolishing the thatched' portions. the landlord's requirement of the demised premises for demolition and reconstruction is bona fide. the first respondent in the rcop. resisted the application for eviction contending as follows: both the portions having two door numbers and in good condition. the landlord's requirement for demolition and reconstruction is not bona fide.2. the rent controller, after considering the entire evidence, both oral and documentary, found that the landlord's requirement of the demised premises for demolition and reconstruction is bona fide and consequently allowed rcop. no. 1 of 1981 and ordered eviction. as against the order of eviction, passed by the rent controller, the petitioners herein along with the third respondent herein filed an appeal, rca. no. 31 of 1975 before the appellate authority (sub court, tindivanam). the appellate authority by its order dated 30-4-1987 confirmed the findings of the rent controller and dismissed the rca.3. aggrieved by the orders of the authorities below, the respondents 1, 2 and 4 in rcop. no. 1 of 1981 have filed the present civil revision petition. mr. r.s. venkatachari, learned counsel for the petitioners raised three contentions in the civil revision petition. in the first place, the learned counsel contended that section 14(2)(b) of act 18 of 1960 says that no order directing the tenant to deliver possession of the building under section 14(1)(b) of the act shall be passed unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the rent controller may, for reasons, to be recorded in writing, allow and such an undertaking contemplated in section 14(2)(b) of the act was not given by the landlord in this case before the rent controller passed the order of eviction, in support of this contention, the learned counsel relied on the decision reported in alamelu v. visalakshi (1978) ii mlj 171. the learned counsel contended that no doubt in this case, the landlord in his evidence as p.w.1 has given an undertaking that if the possession of the demised premises was given to him, he undertakes to demolish and reconstruct the building immediately. but such an undertaking given in the course of evidence of p.w.1 is not sufficient and it will not satisfy the mandatory requirement prescribed by section 14(2)(b) of the act. the learned counsel further contended that the undertaking contemplated in section 14(2)(b) of the act must be undertaking given in writing. the contention of the learned counsel for the petitioner is without substance. in this case, there is a clear statement in the deposition of p.w. 1 (landlord) that if possession is given, he would demolish and reconstruct the building immediately. in my view, that such statement in the deposition of the landlord is an undertaking sufficient to satisfy the requirement of section 14(2)(b) of the act. neither in the act nor, in the rules framed under the act any form is prescribed for the undertaking mentioned in section 14(2)(b) of the act. srinivasan j., in the decision reported in thayammal v. k. subramaniam 1989 1 lw 228 dealing with identical question has held as follows:when the party gives evidence on oath and particularly when he sighs the deposition, that will be a sufficient undertaking within the meaning of the section. there is no necessity to file a separate undertaking apart from such evidence.hence the contention of the learned counsel for the petitioners that there was no undertaking as required by section 14(2)(b) of the act has to be rejected.4. the second contention of the learned counsel for the petitioners is that a single petition for the purpose of demolition and reconstruction of two different buildings bearing door no. 24/a, ekambara pillai street and door no. 10, moogilamman koil street is not maintainable ex. a. a and the evidence available in this case discloses that the demised premises is situated in a corner plot facing ekambara pillai street and moogilamman koil street and two different numbers are given to the portions of premises in question which constitute a single unit. admittedly both the portions having two different numbers are subject of a single lease and that too, to a single tenant for a consolidated rent of rs.12/- per mensem. the petitioners are in common enjoyment of the premises as a whole though the premises bear two door numbers. no prejudice will be caused to the petitioners by the landlord filing a single petition for eviction under section 14(1)(b) of the act. nainar sundaram j., in the decision reported in d. rukmani ammal v. v.k. isudeen : air1983mad303 dealing with an identical question has held as follows:in the instant case though there are two different numbers, they have been the subject matter of a single lease and that too to a single tenant; and structurally the two different numbers are situated in such a proximity and other physical features establish such a nexus that there is a warrant to treat them as single unit let out as such to the tenant. the tenant is in common enjoyment of the unit as a whole though bearing two different numbers. by no stretch of imagination, it could be stated that the tenant was put to prejudice by the process of a single petition for eviction under section 14(1)(b) of the act adopted by the landlord.in these circumstances, the second contention of the learned counsel for the petitioners also cannot be accepted.5. the third contention of the learned counsel for the petitioners is that the landlord has not proved that his requirement of the demised premises for demolition and reconstruction is bona fide. as far as the petition for eviction is concerned, the question whether the requirement for demolition and reconstruction is bona fide or not has to be considered on the basis of the evidence let in by the landlord with regard to the condition of the building and the possession of the necessary funds etc., the supreme court has laid down in metalware & co. v. bansilal : [1979]3scr1107 the principles which have to be followed regarding the demolition and reconstruction. the courts below have found on the facts that the landlord has let in evidence to prove that the requirements laid down by the supreme court have been satisfied in this case. the evidence in this case discloses that the demised premises consist of two thatched portions and the premises were leased out to ravanappa naidu, father of the petitioners 1 and 2,40 years prior to the filing of rcop. ex.p.8 is the deposition of ravanappa naidu in rcop filed in the year 1951 wherein he has stated that both the portions of the building in question is in a dilapidated condition. there is sufficient evidence in this case to show that both the portions of the building have only thatched roof and they are in a dilapidated condition. exs.p-1, p-6 and p-7 go to show that the landlord has obtained sanction from the municipality for constructing a building in the premises in question after demolishing the existing building. there is ample evidence in this case to prove the means of the. landlord for putting up a construction after demolition. having regard to the evidence let in by the landlord, the findings of the authorities below that the landlord's requirement of the building for demolition and reconstruction is bona fide, is unassailable. therefore, the third contention of the learned counsel for the petitioners also fails.6. in the result, this civil revision petition fails and it is dismissed. there will be no order as to costs.somasundaram, j.six months' time granted to the tenants for vacating the premises on condition that they pay the entire arrears of rent, if any, and on further condition that the tenants file an affidavit of undertaking within two weeks from today, undertaking to vacate the premises on the expiry of the period of six months granted in this order.

Judgment:
ORDER

Somasundaram, J.

1. The Respondents 1, 2 and 4 in RCOP. No. 1 of 1981 on the file of the Rent Controller, Tindivanam, who failed before both the Rent Controller and the Appellate Authority are the petitioners in this Civil Revision Petition. The Landlord filed RCOP. No. 1 of 1981 on the file of the Rent Controller, Tindivanam, against the petitioners herein and others for eviction under Sections 10(2)(ii)(b) and 14(1)(b) of the Tamil nadu Buildings (Lease and Rent Control) Act (18 of 1960), (hereinafter referred to as the Act), the case of the landlord in RCOP. No. 1 of 1981 is as follows;- The petition mentioned premises consisting of two items belongs to the respondent herein and it was leased out to one Ravanappa Naidu, 40 years prior to the filing of the RCOP. The said tenant, Ravanappa Naidu, died 15 years prior to the filing of the petition and after his death, the respondents 1 to 4 in the RCOP., who are the heirs of Ravanappa Naidu continued as tenants of the deceased Ellusami Chettiar, the landlord, in respect of the demised premises. The monthly rent for both the portions of the building is Rs.12/-. Both the items of the demised premises constitute one building having two door numbers. Both the portions are thatched houses and they are very old. The landlord requires the building' for demolition of the thatched houses and for reconstruction. The landlord has obtained the necessary sanction from the Municipality for reconstructing the building after demolishing the thatched' portions. The landlord's requirement of the demised premises for demolition and reconstruction is bona fide. The first respondent in the RCOP. resisted the application for eviction contending as follows: Both the portions having two door numbers and in good condition. The landlord's requirement for demolition and reconstruction is not bona fide.

2. The Rent Controller, after considering the entire evidence, both oral and documentary, found that the landlord's requirement of the demised premises for demolition and reconstruction is bona fide and consequently allowed RCOP. No. 1 of 1981 and ordered eviction. As against the order of eviction, passed by the Rent Controller, the petitioners herein along with the third respondent herein filed an appeal, RCA. No. 31 of 1975 before the Appellate Authority (Sub Court, Tindivanam). The Appellate Authority by its order dated 30-4-1987 confirmed the findings of the Rent Controller and dismissed the RCA.

3. Aggrieved by the orders of the Authorities below, the respondents 1, 2 and 4 in RCOP. No. 1 of 1981 have filed the present Civil Revision Petition. Mr. R.S. Venkatachari, learned Counsel for the petitioners raised three contentions in the Civil Revision Petition. In the first place, the learned Counsel contended that Section 14(2)(b) of Act 18 of 1960 says that no order directing the tenant to deliver possession of the building under Section 14(1)(b) of the Act shall be passed unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Rent Controller may, for reasons, to be recorded in writing, allow and such an undertaking contemplated in Section 14(2)(b) of the Act was not given by the landlord in this case before the Rent Controller passed the order of eviction, In support of this contention, the learned Counsel relied on the decision reported in Alamelu v. Visalakshi (1978) II MLJ 171. The learned Counsel contended that no doubt in this case, the landlord in his evidence as P.W.1 has given an undertaking that if the possession of the demised premises was given to him, he undertakes to demolish and reconstruct the building immediately. But such an undertaking given in the course of evidence of P.W.1 is not sufficient and it will not satisfy the mandatory requirement prescribed by Section 14(2)(b) of the Act. The learned Counsel further contended that the undertaking contemplated in Section 14(2)(b) of the Act must be undertaking given in writing. The contention of the learned Counsel for the petitioner is without substance. In this case, there is a clear statement in the deposition of P.W. 1 (landlord) that if possession is given, he would demolish and reconstruct the building immediately. In my view, that such statement in the deposition of the landlord is an undertaking sufficient to satisfy the requirement of Section 14(2)(b) of the Act. Neither in the Act nor, in the Rules framed under the Act any form is prescribed for the undertaking mentioned in Section 14(2)(b) of the Act. Srinivasan J., in the decision reported in Thayammal v. K. Subramaniam 1989 1 LW 228 dealing with identical question has held as follows:

When the party gives evidence on oath and particularly when he sighs the deposition, that will be a sufficient undertaking within the meaning of the Section. There is no necessity to file a separate undertaking apart from such evidence.

Hence the contention of the learned Counsel for the petitioners that there was no undertaking as required by Section 14(2)(b) of the Act has to be rejected.

4. The second contention of the learned Counsel for the petitioners is that a single petition for the purpose of demolition and reconstruction of two different buildings bearing door No. 24/A, Ekambara Pillai Street and door No. 10, Moogilamman Koil Street is not maintainable Ex. A. A and the evidence available in this case discloses that the demised premises is situated in a corner plot facing Ekambara Pillai Street and Moogilamman Koil Street and two different numbers are given to the portions of premises in question which constitute a single unit. Admittedly both the portions having two different numbers are subject of a single lease and that too, to a single tenant for a consolidated rent of Rs.12/- per mensem. The petitioners are in common enjoyment of the premises as a whole though the premises bear two door numbers. No prejudice will be caused to the petitioners by the landlord filing a single petition for eviction under Section 14(1)(b) of the Act. Nainar Sundaram J., in the decision reported in D. Rukmani Ammal v. V.K. Isudeen : AIR1983Mad303 dealing with an identical question has held as follows:

In the instant case though there are two different numbers, they have been the subject matter of a single lease and that too to a single tenant; and structurally the two different numbers are situated in such a proximity and other physical features establish such a nexus that there is a warrant to treat them as single unit let out as such to the tenant. The tenant is in common enjoyment of the unit as a whole though bearing two different numbers. By no stretch of imagination, it could be stated that the tenant was put to prejudice by the process of a single petition for eviction under Section 14(1)(b) of the Act adopted by the landlord.

In these circumstances, the second contention of the learned Counsel for the petitioners also cannot be accepted.

5. The third contention of the learned Counsel for the petitioners is that the landlord has not proved that his requirement of the demised premises for demolition and reconstruction is bona fide. As far as the petition for eviction is concerned, the question whether the requirement for demolition and reconstruction is bona fide or not has to be considered on the basis of the evidence let in by the landlord with regard to the condition of the building and the possession of the necessary funds etc., The Supreme Court has laid down in Metalware & Co. v. Bansilal : [1979]3SCR1107 the principles Which have to be followed regarding the demolition and reconstruction. The courts below have found on the facts that the landlord has let in evidence to prove that the requirements laid down by the Supreme Court have been satisfied in this case. The evidence in this case discloses that the demised premises consist of two thatched portions and the premises were leased out to Ravanappa Naidu, father of the petitioners 1 and 2,40 years prior to the filing of RCOP. Ex.P.8 is the deposition of Ravanappa Naidu in RCOP filed in the year 1951 wherein he has stated that both the portions of the building in question is in a dilapidated condition. There is sufficient evidence in this case to show that both the portions of the building have only thatched roof and they are in a dilapidated condition. Exs.P-1, P-6 and P-7 go to show that the landlord has obtained sanction from the Municipality for constructing a building in the premises in question after demolishing the existing building. There is ample evidence in this case to prove the means of the. landlord for putting up a construction after demolition. Having regard to the evidence let in by the landlord, the findings of the Authorities below that the landlord's requirement of the building for demolition and reconstruction is bona fide, is unassailable. Therefore, the third contention of the learned Counsel for the petitioners also fails.

6. In the result, this Civil Revision Petition fails and it is dismissed. There will be no order as to costs.

Somasundaram, J.

Six months' time granted to the tenants for vacating the premises on condition that they pay the entire arrears of rent, if any, and on further condition that the tenants file an affidavit of undertaking within two weeks from today, undertaking to vacate the premises on the expiry of the period of six months granted in this order.