1. Rule, returnable forthwith.

2. Mr. Kshirsagar, learned Counsel appearing for respondent waives service. Heard finally by consent of parties.

Introduction

3. This petition, filed under Article 226 and 227 of the Constitution of India, is seeking to challenge the order dated 21st February, 2008 passed by Learned Presiding Officer of the Debt Recovery Tribunal, Pune (for short "DRT") in Securitisation Application No.41 of 2007 together with judgment and order passed by the Debts Recovery Appellate Tribunal, Mumbai (for short "DRAT") dated 24th August, 2007 in Appeal No.300 of 2007 and Miscellaneous Application No.856 of 2007 and seeking directions against the respondent calling upon it to deposit an amount of Rs.2 crores in DRT, Pune or with the petitioner bank as indicated in the impugned order by the DRAT.

Factual Matrix

4. The factual matrix giving rise to the present petition is, that the petitioner is a Cooperative Bank registered under the provisions of the Multi State Cooperative Societies Act,2002 (for short "the Act of 2002") as Multi State Cooperative Society (@the Cooperative bank@ for short) and carrying on business of banking under the license issued to it by the Reserve Bank of India under Section 22 of the Banking Regulation Act,1949 (for short "the Banking Regulation Act").

5. The respondent is a private limited companyand borrower of the petitioner cooperative bank.

6. The respondent has borrowed loan in the sum of Rs.1,25,00,000/- from the petitioner bank on 11th August, 1999 agreeing to repay the same in monthly instalment of Rs.2,80,000/-. The respondent, by way of security executed a deed of mortgage and thereunder mortgaged land and building bearing No.322 situated at Pune cantonment, Pune Camp (for short "said property").

7. The respondent failed to repay the instalments regularly and fell in arrears to the tune of Rs.2,19,19,099.50 as on 11th July, 2003. The petitioner, therefore, issued a notice of demand under Section 13(2) & (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "Securitisation Act").

8. The respondent, in spite of receipt of the notice, did not comply with the notice of demand. Consequently, the petitioner took symbolic possession of mortgage property on 21st October, 2003, and thereafter, issued a public notice of auction sale to sell the said property in the local news papers.

9. The aforesaid action of the petitioner was the subject matter of challenge in the Writ Petition No.1448 of 2004 before this Court, wherein the declaration was sought that the provisions of the Securitisation Act including Section 13 thereof are unconstitutional and declaration was sought that the auction notice dated 28th January, 2004 was bad and illegal.

10. The said petition came to be disposed of vide order dated 29th June, 2006, in view of the judgment of the Apex Court in the case of Mardia Chemicals Ltd. and Ors. Vs. Union of India and Ors. 2004(2) Mh.L.J.1090, wherein, the constitutional validity of the Securitisation Act was upheld. The petitioner was relegated to the remedy of appeal under Section 17 of the Securitisation Act before the DRT.

11. The respondent, pursuant to the aforesaid order, invokved appellate jurisdiction of the DRT, Mumbai.

12. The petitioner, pending above appeal, issued another public notice to auction of the said property. The respondent was, therefore, required to prefer an application for urgent relief praying for stay of auction sale. The DRT, Pune vide its order dated 9th August, 2007 was pleased to reject the prayer for interim relief holding that the bank was justified in taking action to sell the property by public auction.

13. Being aggrieved by the aforesaid order rejecting prayer for interim relief, the respondent preferred an appeal under Section 18 of the Securitisation Act before the DRAT along with Miscellaneous Application for waiver of pre-deposit under third proviso to Section 1