S.H. Kapadia JUDGMENT
S.H. Kapadia, J.
1. A short question of public importance arises for determination, namely, whether withdrawal of O.A. in terms of the first proviso to Section 19(1) of the DRT Act, 1993 (inserted by the Amending Act No. 30 of 2004) is a condition precedent to taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("NPA Act" for short).
Facts in Civil Appeal No. 3228 of 2006:
2. Since the above question arises in a batch of matters, for the sake of convenience, we refer briefly to the facts in civil appeal No. 3228/06, in which M/s Transco is the appellant. In March 1999, O.A. No. 354/99 was filed by Indian Overseas Bank ("the bank") before the DRT, Chennai for recovery of dues from M/s Transcore- appellant herein. The claim was disputed. An interlocutory application was filed by the bank in the said O.A. to bring the properties to sell. That I.A. is pending even today.
3. On 6.1.2003, a notice under Section 13(2) of the NPA Act was issued. On 11.11.2004 the following provisos were introduced in Section 19(1) of the DRT Act vide amending Act 30 of 2004:
Provided that the bank or financial institution may, with the permission of the Debts Recovery Tribunal, on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), if no such action had been taken earlier under that Act:
Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:
Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefore.
4. On 8.1.2005, the said bank issued Possession Notice under Section 13(4) of the NPA Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 ("2002 Rules") stating that, vide notice dated 6.1.2003, the appellant herein (M/s Transcore) was called upon to repay an amount of Rs. 4.15 crores (approximately) together with interest within sixty days; that the appellant had failed to repay the amount; that a notice was also given to the guarantor; that the bank had taken possession of the immovable properties mentioned in the schedule to the Notice; and, that the appellant and the guarantor were directed not to deal with those immovable properties. By the said Possession Notice, the........