N.Dhanapal v. The District Magistrate And
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2017
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.P.No.11515 of 2017 and WMP No.12502 of 2017 N.Dhanapal ... Petitioner vs.
1. The District Magistrate and District Collector, Tiruppur District.
2. Corporation Bank Rep. by its Manager, Tiruppur Main Branch, Mangalam Road, Tiruppur.
3. R.Natarajan
4. N.Jayanthi ... Respondents WRIT Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Mandamus, forbearing the respondents, their subordinates and servants in any manner dispossessing or evicting the petitioner from the property more particularly described in the schedule of property without due process of law in terms of an order made in Rc.No.1093/2016/C3 dated 03.11.2016 passed by the 1st respondent. For Petitioner :
Mr.R.Dhanaram For Respondents :
Mr.K.V.Dhanapalan (for R1) Spl. Government Pleader Mr.S.Sethuraman (for R2) No appearance - for R3 & R4
ORDER
(Order of the Court was delivered by S.MANIKUMAR, J) Claiming himself to be a tenant under the respondents 3 & 4 with effect from 19.03.2010 and that he cannot be evicted under the provisions of the SARFAESI Act, 2002, petitioner has sought
for a writ of mandamus forbearing the respondents, their subordinates and servants in any manner dispossessing or evicting the petitioner from the property more particularly described in the schedule of property without due process of law in terms of an order in Reg.No.10048/2016/C3 dated 27.03.2017 passed by the 1st respondent.
2. As per Section 17(4-A) of SARFAESI Act, 2002, inserted by Act 44 of 2016, with effect from 01.09.2016 (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purpose of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy, - (a) has expired or stood determined; or (b) is contrary to Section 65 A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of Section 13 of the Act; and (ii).
the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or subclause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act."
3. Despite the amendment, with effect from 01.09.2016, instant writ petition has been filed on 02.05.2017, for the relief stated supra.
4. Record of proceedings shows that while ordering notice to the respondents returnable on 16.06.2017, a Hon'ble Division Bench of this Court vide order dated 02.06.2017 has directed status quo, as on date of the order, to be maintained by the concerned parties. Subsequently, on 16.06.2017, interim order has been extended.
5. On this day, when the matter came up for further hearing, Mr.R.Dhanaram, learned counsel for the writ petitioner seeks permission to withdraw the writ petition and he has also made an endorsement to that effect. Further, the learned counsel seeks liberty to move the tribunal under Section 17 (4-A) of SARFAESI Act, 2002.
6. Placing on record the above, the writ petition is dismissed as withdrawn. No leave is granted to file a fresh writ of mandamus for the very same prayer. No costs. Consequently, the connected Writ Miscellaneous Petition is closed.
Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar ars To
1. The District Magistrate and District Collector, Tiruppur District.
+1cc to Mr.S.Sethuraman, Advocate Sr. 47062 W.P.No.11515 of 2017 and WMP No.12502 of 2017 PA(CO) VR(17/07/2017)