Hon’ble Sudhanshu Dhulia, J. (Oral)

Petitioners had borrowed a loan from the respondent-Bank, namely, State Bank of India, Main Branch, Kashipur, District-Udham Singh Nagar in the year 2010, for an amount of ‘65.00 lakhs. This loan could not be repaid and, consequently, the respondent-Bank proceeded under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (from herein after referred to as “the SARFAESI Act ”).

2. A notice under Section 13 (2) of the SARFAESI Act, 2002 was given to the petitioners to which petitioners gave a reply. Meanwhile, the respondent-Bank also filed an Original Application before the Debt Recovery Tribunal, Lucknow under Section 19 (1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (from herein after referred to as “the DRT Act”). Thereafter, the Bank proceeded under Section 13 (4) of the SARFAESI Act and took a symbolic possession of the secured asset, namely, the land which was mortgaged to the Bank.

3. Now, actual possession is being taken and further proceeding are to be done by the Bank, as indicated under Section 13 (4) of the SARFAESI Act. Meanwhile, the respondent-Bank proceeded to file another application before the DRT under Section 19 (1) of the DRT Act.

4. Being aggrieved, the petitioners filed present writ petition before this Court, wherein the ground taken by the petitioners is that when an application under Section 19 (1) of the DRT Act has already been filed by the Bank before the DRT, it cannot further proceed under Section 13 (4) of the SARFAESI Act. This argument is based on two grounds, (a) Bank has already given a notice under Section 13 (2) of SARFAESI Act, they cannot proceed under any other provision of law against the borrower and, (b) they have to take prior permission of the Debt Recovery Tribunal before proceeding further against the borrower in terms of proviso to Section 19 (1) of the DRT Act. Section 19 (1) of DRT Act reads as follows:-

“1[19. Application to the Tribunal.—(1) Where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or

(c) the cause of action, wholly or in part, arises”

2[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 Securitization 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 therefor.]”

5. In short the argument of the petitioners would be that the Bank had two remedies by which it could recover its loan, (a) either by moving an application before the DRT, or (b) by invoking provisions provided under SARFAESI Act. Since the respondent-Bank has elected to proceed under the DRT Act to rec