Punjab-Haryana High Court
Punjab State Industrial Development ... vs Union Of India And Others on 5 January, 2012
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CWP No. 15393 of 1990 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 15393 of 1990 (O&M)
Date of decision 5.1.2012
Punjab State Industrial Development Corporation Ltd. . Petitioner
Versus
Union of India and others .. Respondents.
CORAM: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present: Mr. Vikas Mohan Gupta, Advocate for the petitioners
Mr. Arun Nehra, Advocate for respondent no.4.
1. To be referred to the Reporter or not ?
2. Whether the judgement should be reported in the Digest ?
M.M.KUMAR,J.
1. The short issue raised in the instant petition is whether Punjab State Industrial Development Corporation (PSIDC) has a preferential right to recover its dues being the secured creditor having prior registered charge by virtue of mortgage and equitable mortgage over the moveable and immovable assets of M/s Manufacturing Technologies India Ltd..- respondent no.3.
2. The facts are not in dispute. Manufacturing Company- Respondent no.3 is a borrower and had secured loan from the petitioner- PSIDC under the Industrial Development Bank of India Refinance Scheme by executing a loan agreement on 22.12.1983. As per Clause IV of the loan agreement, 1st charge was created over the moveable and immoveable properties belonging to Manufacturing Company-respondent No.3 including machinery, spares, tools and accessories, present and future. On 10.11.1989 (P.4) an order of taking over Manufacturing Company- respondent no.3 was passed by the Managing Director of Punjab Financial CWP No. 15393 of 1990 2 Corporation authorising the officers of the PSIDC to take over the Manufacturing Company- respondent no.3. However, they were confronted with the extreme difficult situation because possession of the building was taken by the Collector of Customs and Central Excise, Chandigarh- respondent no.2 to effect recoveries from the Manufacturing Company- respondent no.3 which have accrued for violation of various provisions of the Excise Act. Those dues have accrued by virtue of two separate orders dated 26.5.1988 and 20.8.1988 passed by respondent no.2. It is in the afore-mentioned factual backdrop that the above referred question has arisen in the present case.
3. The matter is no longer res-integra because in the case of PSIDC v. UOI and others (CWP No. 3875 of 2005) decided on 30.1.2007 it was held that PSIDC-petitioner have a preferential right to recover its dues because it is a secured creditor having prior registered charge by virtue of mortgage and equitable mortgage over moveable and immovable assets of the Manufacturing Company- respondent no.3. The charge of the Central Excise Department was preferable only to un-secured creditors. It is appropriate to mention that the Division Bench has also placed reliance on a judgement of Hon'ble the Supreme Court in the case of Dena Bank v. Nbhikhabhai Prabhudas Parekh and Company (2000) 5 SCC 694.
4. In view of the aforesaid opinion expressed by the Division Bench, no doubt is left that the writ petition would deserve to succeed. Accordingly the writ petition is allowed by declaring that PSIDC being a secured creditor having prior registered charge by virtue of mortgage and equitable mortgage over the moveable and immovable assets of Manufacturing Company- respondent no.3 would have preferential rights CWP No. 15393 of 1990 3 to recover its dues than the dues of respondent nos. 1 and 2. Both the respondents No. 1 and 2 must give way to enable the petitioner and respondent no.4 to effect recovery of their dues ahead of recovery of dues by respondent nos. 1 and 2.
(M.M.Kumar) Judge (Ajay Kumar Mittal) 5.1.2012 Judge okg