- (1.) THIS appeal is admitted and be listed for hearing on 19.5.2009.
(2.) IN the meantime, the direction of the learned Single Judge at paragraph no. 52 in the impugned judgment and order, quashing and setting aside the action of the appellant -Bank and restraining it from proceeding on the basis of the notice dated 29.11.2004 and reverting back to the provision of the Securitisation and .Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 shall remain stayed. Consequently, the appellant -Bank shall be at liberty to proceed against the respondent under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in view of the ratio of the decision of the Supreme Court delivered in the case of Transcore vs. Union of India and Anr. reported in (2008)1 SCC 125, wherein it has clearly been held that the proceeding under the D.R.T Act is not a precondition for taking recourse to the NPA Act and it is for the Bank/Financial Institution to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for leave to withdraw. It has further been held therein that the circumstances need not be spelt out since Section 19(1), first proviso of the aforesaid Act, is an enabling provision, which provision may deal with myriad circumstances.
(3.) IN so far as the instant matter is concerned, the circumstances indicate that the respondent has already availed and used a sum of Rs. 55 lacs which was advanced by the appellant -Bank to the respondent by way of grant of cash -credit facility. The said amount admittedly has been availed by the respondent and by way of repayment, a meagre amount of As. 7 lacs only has been paid to the Bank, which is denied by the counsel for the respondent. However, we do not wish to express any opinion on this dispute as the same will have to be adjudicated and determined before the D.R.T.;