F. I. REBELLO, J.

( 1 ) HEARD forthwith.

( 2 ) THE main issue which arises in this petition is as under :"is a secured creditor entitled to move under the provisions of The Securitisation and reconstruction of Financial Assets and enforcement of Security Interest Act, 2002 (hereinafter referred to as "securitisation Act"), if proceedings have already been initiated and are pending under the provisions of the recovery of Debts Due to Banks and Financial institutions Act, 1993 (hereinafter referred to as "r. D. B. Act")" and without withdrawing those proceedings?"

( 3 ) TO answer the issue, a few facts may be set out. The respondent bank has initiated proceedings under the R. D. B. Act bearing O. A No. 254 of 2001. Petitioner No. 1 is guarantor and petitioner No. 2 is principal debtor. The proceedings are pending before debts Recovery Tribunal, Nagpur (hereinafter referred to as "d. R. T. " ). The case of petitioner no 1 is that he has specifically taken a stand in the proceedings bearing O. A. No. 254 of 2001 that he has no obligation to pay any amount to the respondent. This contention is based on the assumption that there are no signatures of the Bank officials on the guarantee deed and as such there was no contract between the Respondent Bank and the petitioner No. 1 and consequently no liability can be fastened on him. An order came to be passed on 2-4-2004. On this contention raised by the petitioners which is dated 2-4-2004 the matter was adjourned to 16-4-2004. When the matter was pending before the d. R. T. and though according to the Petitioners there were serious disputes in the matter of recovery of the alleged dues towards repayment of the alleged loan to petitioner no. 2, the respondent bank issued notice under section 13 (2) of the Securitisation Act dated 21-7-2004. By the notice the petitioners were called upon to pay an amount of Rs. 9,42,421/ - plus interest @ 16,50% w. e. f. 1-4-1995 within a period of 60 days from the date of receipt of the notice failing which the Respondent Bank threatened to take action under section 13 (4) of the Securitisation Act. The petitioners on receipt of notice dated 21-7-2004 replied to the same by the reply dated 1-10-2004. Various objections were taken as to why the respondent bank ought not to take action and ought to withdraw the notice. It is the case of the petitioners that the respondent without taking into consideration the contention as urged by the petitioners by the letter dated 20th October, 2004 rejected the contentions raised by the petitioners in their reply dated 1-10-2004. The contention of the petitioners is that the reply was sent without application of mind. The Respondent thereafter, pursuant to the notice dated 21-7-2004, issued under section 13 (2) of the Securitisation Act, took symbolic possession on 10-11-2004 of the property which the Petitioners contend was allegedly mortgaged with the Respondent. The petitioners have signed documents/possession letter and a list of inventories without prejudice to any of their rights. The petitioners preferred an appeal before D. R. T. bearing Appeal No. 1/2004. By the appeal the petitioners are challenging the action on the part of the respondent bank of issuing notice dated 21-7-2004 under the Act and also action taken pursuant thereto. Interim relief was granted by d. R. T. staying operation of the measures and action taken under section 13 (4) of the Act. On being served, the respondent bank has put in appearance and filed their reply. The learned presiding Officer, D. R. T. , Nagpur heard the counsel for the petitioners and the respondent on 4-5-2005 and passed judgment and order on the same date dismissing the appeal preferred by the petitioners. It is this order which is the subject-matter of the present petition.

( 4 ) AT the hearing of this appeal, on behalf of appellant, their learned Counsel has submitted, firstly, that it was incumbent on the respondent bank to elect one of the two remedies availab