(Prayer in W.P.No.10001 of 2017: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari calling for the records of the learned Chief Metropolitan Magistrate, Allikulam, Chennai-3, relating to passing of the order dated 2.6.2016 and 10.06.2016 in Crl.M.P.No.6481 of 2016 and quash the same.
in W.P.No.7761 of 2017: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari calling for the records pertaining to Crl.M.P.No.6481 of 2016, on the file of the learned Chief Metropolitan Magistrate, Egmore and quash the order vide dated 02.06.2016, made in Crl.M.P.No.6481 of 2016, on the file of the Chief Metropolitan Magistrate, Egmore.)
Huluvadi G.Ramesh, J.
1. The petitioners are tenants under the second respondent. The petitioner in W.P.No.11001 of 2017 is running a Pharmacy and the petitioner in W.P.No.7761 of 2017 is residing in the said premise, as a tenant, for the last 15 years. It is seen that the second respondent, namely, the owner of the property, has created mortgage of the subject property with the first respondent. Since the second respondent/borrower has defaulted in making the repayment to the first respondent bank, the bank initiated action under the SARFAESI Act and approached the Chief Metropolitan Magistrate, Allikulam, and obtained an order for recovery of possession. On the strength of the said order, the bank demanded the petitioners, who are the tenants and residing in the respective portions of the premises, to vacate the same and handover vacant possession. It is the grievance of the petitioners that the first respondent, in collusion with the second respondent bank, is indulging in such activities so as to evict them from the premises, without following the due process of law. Hence, the petitioners are before this Court with these writ petitions.
2. Heard the learned counsel for the parties and also perused the records carefully.
3. When the writ petition in W.P.No.7761 of 2017 came up for hearing, this Court, vide order dated 3.4.2017, granted interim stay of the order impugned in the writ petition. Seeking to vacate the said order, now the respondent bank has moved W.M.P.No.10790 of 2017.
4. It appears that the second respondent/owner of the premises has created mortgage in respect of the said premises and since he defaulted in repaying the loan amount, the bank has initiated action under the SARFAESI Act, which cannot be found fault with. At the same time, it is stated that the petitioner in W.P.No.10001 of 2017 is running a pharmacy in a portion of the premises and they expressed some difficulty in finding an alternative premises immediately and as such requested for sufficient time to vacate the premises and hand over vacant possession.
5. Considering the facts and circumstances of the case and also considering the difficulty expressed by the petitioner in W.P.No.10001 of 2017, it is directed that subject to filing of an undertaking by the petitioner that they will vacate and handover vacant possession of the respective portion, on or before 30.06.2017, the respondent bank shall consider the case of the petitioner, subject to payment of arrears of rent. If possession has already been taken by the respondent bank, the same shall be nullified till the vacant possession is handed over by the petitioner. Considering the apprehension expressed by the petitioner in W.P.No.7761 of 2017 that he will be vacated by the respondent bank, without following the due process of law and since in view of the stay granted by this Court, the respondent bank
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is unable to take possession of the portion under occupation by the petitioner/Velavan, it is made clear that the respondent bank shall issue notice to the petitioner, who is in occupation of the respective portion of the subject premises and get him vacated following the due process of law. 6. The writ petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed.