Bombay High Court
Indian Overseas Bank vs The State Of Maharashtra Thr. Gp And Ors on 18 December, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:50637-DB
10-WP-8943-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8943 OF 2022
1. Indian Overseas Bank
5th floor, Maker Tower,
"E" Wing, Cuffe Parade,
Mumbai-400 005
Email id: [email protected]. ...Petitioner
VERSUS
1. The State of Maharashtra
through the Government Pleader
having his office at the
PWD Building, Civil Side
High Court, Mumbai - 400001.
2. The Talathi,
Nehroli Village, Wada Thaluk,
Palghar District, Maharashtra-401 404
3.The District Collector,
District: Palghar,
2nd Floor, Parshwnath 9,
Bidco Naka, Palghar, Maharshtra 401404
4. The Tahsildar
Taluka: Wada,
District: Palghar
Maharashtra-401 404
5. Dy. Commissioner of State Tax
(PAL-VAT-E-005),
Ground Floor, GST Office,
Bansidhar Building, KLT Naka,
Ganesh Nagar, Venoor, Palghar (E)
Maharashtra-401404
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10-WP-8943-2022.doc
6. Texplast Industries Limited
210/211/212, Anand Estate,
2nd Floor, 189A, Sane Guruji Marg,
Chinchpokli West, Maharashtra-400011
7. Mr. Sajjan Kumar Dokania
18 R Dev Park CSHL,
Opposite Chandan Talkies,
Vile Parle (West)
Maharashtra -400049 ...Respondents
...
Mr. Rajesh Dubey, Advocate for the Petitioner.
Smt. S.D. Vyas, Additional Government Pleader with Smt. Reena A.
Salunkhe, Assistant Government Pleader for the Respondent-State of
Maharashtra.
Mr. Siddarth Seshadri, Advocate, i/by Pan India Legal Services LLP,
for Respondent No.7.
...
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 18th DECEMBER, 2024
JUDGMENT (PER RAJESH S. PATIL, J.) :
1. This Writ Petition is filed under Article 226 and 227 of the Constitution of India by the Petitioner-Bank, seeking a relief of issuance of Writ of Mandamus directing the respondent No.2- (Talathi, Nehroli Village) to delete/cancel the impugned mutation 2/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc entry No.1087 recorded in respect of the secured assets in favour of the Respondent No.5- (Deputy Commissioner of State Tax), and to declare that the petitioner has a prior and first charge over the secured assets and the petitioner-bank shall be at liberty to enforce its right under the provisions of the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (for short "SARFAESI Act") in respect of the secured assets.
2. By an order dated 15th September, 2022 passed in this Writ Petition, "RULE" was issued so also the petitioner-bank was allowed to go ahead and confirm the auction sale. In order to protect the interest of respondent No.5-(Deputy Commissioner of State Tax), the petitioner was directed to deposit from the sale proceeds, a sum of Rs.1,50,000/- with the Registrar, Appellate Side, High Court of Bombay. The said amount was directed to be invested in a Fixed Deposit with a Nationalised Bank. The respondent Nos.2 to 4- (Talathi, District Collector and Tahsildar of District Palghar) were directed to take steps, to have the lien entry in the mutation records cancelled within one week.
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3. The petitioner-bank sanctioned a credit facility to the respondent No.6-(Texplast Industries Limited). In order to secure credit facility for the amount of Rs.42,61,00,000/- (Rupees Forty Two Crores, Sixty One Lakhs Only), the respondent No.6 created a security by way of a mortgage deed dated 2 nd October, 2013 in respect of properties being all that piece and parcel of (1) Gut No.39, Hissa No. paiki 2 Acres, Nehroli Village Wada Taluka, Thane and (2) Gut No.40 admeasuring 1 acre 6.5 gunthas Nehroli Village Wada Taluka and District Thane. All that piece or parcel of flat No. 1301, admeasuring about 550 sq. fit. built p area, on the 13 th Floor in the building known as Surya Apartment Co-operative Housing Society limited, situated at 53, Bhulabhai Desai Road, Mumbai - 400 026, together with shares issued by Surya Apartment Cooperative Housing Society Limited under Share Certificate No. 93 (for short "secured assets").
4. As the borrowers failed to maintain the loan account, the Petitioner-Bank declared the account of Respondent no.6 as NPA, on 31st March, 2014. Subsequently, the Petitioner Bank issued a demand 4/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc notice dated 12th May, 2014, under Section 13(2) of the SARFAESI Act to Respondent no.6 (borrower), demanding a sum of Rs.31,30,70,809.66, together with interest thereon within 60 days. As the borrower did not comply with the demand as made in the notice under Section 13(2) of the SARFAESI Act, the Petitioner bank through its authorized officer took a symbolic possession of the secured assets on 26th November, 2014 and further, issued a Possession Notice under Section 13(4) of the SARFAESI Act, which was published in newspapers.
5. The petitioner-Bank registered the mortgage charge of the petitioner-Bank in respect of the secured assets with Central Registry of Securitisation Asset Reconstruction and Security Interest of India (for short 'CERSAI')on 18th November 2014.
6. The Petitioner Bank thereafter filed a Securitisation Application No.84/2015 before the District Magistrate, Palghar under Section 14 of the SARFAESI Act for seeking assistance for taking physical possession of the secured assets. Consequently, by an order dated 18 th September, 2015, the District Magistrate, Palghar, was pleased to allow the Securitization Application No.84/2015, with direction to 5/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc Tahsildar to take physical possession with police assistance and hand over the same to the authorized officer of Petitioner Bank.
7. In the meanwhile, on 22nd May, 2018, the respondent No.5- (Deputy Commissioner of State Tax) issued a letter to the petitioner informing the petitioner about the outstanding arrears of Sales Tax of the respondent No.6-(Borrower) and called upon the petitioner to stop the process of attaching the property (secured assets) and further, the auction of the said property. The petitioner by a letter dated 22nd May, 2018 replied that being a secured creditor, they would have priority over the secured assets under the provisions of the SARFAESI Act.
8. The respondent No.5-(Deputy Commissioner of State Tax) by his order dated 11th December, 2018 attached the secured assets against the non-payment of sales tax dues by respondent No.6- (Borrower) amounting of Rs.1,12,78,272/- (Rupees One Crore Twelve Lakhs Seventy Eight Thousand Two Hundred Seventy Two Only). Pursuant to which the respondent No.2-(Talathi) recorded mutation entry No.1087 of the secured assets about encumbrance in favour of the respondent No.5-(Deputy Commissioner of State Tax). 6/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc
9. Thereafter, the petitioner-Bank issued an E-auction notice dated 27th April, 2022 for the sale of the secured assets. Pursuant to the order passed by the District Magistrate, Palghar, the Tahsildar took possession of the secured assets and handed over the possession to the petitioner-Bank. The respondent No.7 participated in the auction process and was declared as a successful bidder for the secured assets.
10. The present Writ Petition challenges the action of respondent No.2-(Talathi), of entering the name of the respondent No.5 in Mutation No.1087 and seeking a declaration that the petitioner-bank has the first charge over the secured assets under the provisions of the SARFAESI Act.
11. The respondent (State of Maharashtra) filed their reply to the Writ Petition opposing the grant of any prayers in favour of the petitioner-Bank. It is submitted that there was an amnesty scheme in the year 2019 named as "Settlement of Arrears of Tax, Interest, Penalty or Late Fee under various Act administered by the 7/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc Maharashtra Goods and Services Tax Department". During such period the Tax Authorities do not take immediate drastic steps of selling the attached property. It is further submitted that during a google search, it was found that Financial Creditor- Finquest Financial Solutions Private Limited had filed a Petition under IBC 2016, seeking CIRP in a matter against the defaulter (Respondent No.6). On date 26th August, 2022 for amount of Rs.11,44,80,714/- including interest including interest and vide order dated 18 th July, 2023, the Sale Tax Department accordingly lodged a claim with IRP on 29th August, 2023 for Rs.2.80 Crores. It is submitted that the E- auction for the said property was conducted by the petitioner on 27 th April, 2022, but on the said date, the charge of the respondent No.5 over the secured assets for the tax dues was already recorded in the 7/12 extract of the said property. It is submitted that conjoint reading of the Security Interest Enforcement Rules, 2002 mandates that the Authorized Officer while putting up a secured asset for sale is under a duty to notify inter-alia, the details of encumbrances. Hence, it is submitted that to discharge the encumbrances, the secured creditors as well as auction purchaser should deposit money to the Tax Authorities. It is submitted that the first charge claim of State Tax 8/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc Authority was communicated to the petitioner-Bank before the E- auction was conducted. It is further submitted that it was the duty of the petitioner-Bank to indicate in the sale advertisement inviting bids.
SUBMISSION
12. Mr. Dubey appearing on behalf of the petitioner made his submissions. He submitted that the Section 26 (E) of the SARFAESI Act being a non-obstante clause, puts a secured creditor in first priority over any other debts and all revenue, taxes, cesses and other rates payable to the Cenral Goverment or State Government or local authority. He further submitted that there is similar kind of provisions under Section 31B of the Recovery of Debt Due to Bank and Financial Institutions Act, 1993, wherein the secured creditors are given the priority over any other debt or statutory liability. He further submitted that as per Section 37 of the SARFAESI Act, the provisions of the SARFAESI Act shall be in addition to and not in derogation of inter alia RDB Act or any other act. In addition to this, it is important to note that the Section 35 of the SARFAESI Act has an overriding effect over all laws for the time being in force. He submitted that the Writ Petition be allowed.
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14. Ms. Shruti Vyas, the learned Additional Government Pleader appeared on behalf of the respondent-State and made her submissions. She submitted that the State Tax Department continuously followed with the concerned Talathi office in order to register Mutation Entry/ Encumbrances as per Form No.4-attachment order issued by Sale Tax Department dated 11th December, 2018. Pursuant to which the Talathi took cognizance and passed mutation entry No.1087 on 17th December, 2022 after a period of two years of issuance of Form No.4 dated 11th December 2018.
15. She submitted that while admitting the present Writ Petition certain directions were passed by the Division bench of this Hon'ble Court on 15th September, 2022. Pursuant to which the respondent Nos. 2 and 4 removed the encumbrances entry in 7/12 extract of the secured asset and accordingly the charge has been removed, which was subject to further order which will be passed in this Petition. She submitted that the Full Bench of this Court in Jalgaon Janta Sahakari Bank Ltd & Anr V/s. Joint Commissioner of Sales Tax Nodal 9 & Anr reported in 2022 SCC Online Bom 11930 has clarified the position. 10/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc Hence, the Writ Petition should be dismissed and the amount deposited by the petitioner-Bank should be allowed to be withdrawn by the respondent No.5-(Deputy Commissioner of State Tax) and further with respect to the the amount received by the petitioner- Bank by way of an E-auction of the secured assets, the petitioner- Bank should be directed to bring back that in the Court and the respondent No.5 be allowed to withdraw that amount, which was adjusted as tax dues of the respondent No.6. The respondent Nos. 2 and 4 to be directed to enter encumbrances by way of mutation entry of the secured assets.
16. We have heard learned counsel for both sides and we have also considered the documents on record.
17. The issue to be answered in the present matter is ;
"Whether the Respondent no.5 (The Deputy Commissioner of State Tax) will have priority charge over the secured assets sold by Petitioner bank (secured creditor) under the SARFAESI Act."
18. The borrower or guarantor have not challenged the impugned orders of Attachment.
19. In the present proceedings, it is a matter of record that on 18 th November 2014, the Petitioner bank registered the secured assets under the Central Registry of CERSAI.
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20. There is no dispute that Respondent no.5 (The Deputy Commissioner of State Tax) has not registered its claim of arrears of sales tax with regard to Respondent no.6 (Texplast Industries Ltd.) The amended Section 26D, makes it mandatory for secured creditors to register their security interest, to be entitled to exercise the rights of enforcement of securities.
21. Section 26-E of the SARFAESI Act reads as under:-
"26-E. Priority to secured creditors. - Notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority."
22. The Full Bench of this Court in Jalgaon Janta Sahakari Bank Ltd. (supra) has clarified the issue of priority of security creditor. Paragraphs 78, 79, 84, 85, 88, 150, 153, 154 and 155 of the said judgment which read as under:-
"78. Section 26-E, also beginning with a non-obstante clause, is unambiguous in terms of language, effect, scope and import. A 'priority' in payment over all other dues is accorded to a secured creditor in enforcement of the security interest, if it has a CERSAI registration, except in cases where proceedings are pending under the provisions of the Insolvency and Bankruptcy Code, 2016.
79. The disabling provision in section 26D and the enabling provision in section 26-E, both begin with non-obstante clauses, as noticed above. The scheme of Parts III and IV-A of the SARFAESI Act envisages benefits to a secured creditor who is diligent and obtains CERSAI registration while depriving a secured creditor of even taking recourse to Chapter III without the requisite registration.12/18
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84. The fact that the BST Act and the MVAT Act, which are under consideration, expressly make it subordinate or subservient to any Central legislation creating first charge cannot be ignored. The 2016 Amending Act being of recent origin, the first query that arises in this regard is : did the Parliament not know that there is a plethora of legislation in the country, both Central and State, that speaks of creation of 'first charge' in favour of a department of the Central/State Government? The reply cannot but be in the affirmative. The next query that would obviously follow is : whether the word 'priority' appearing in section 26E of the SARFAESI Act, i.e., "... paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority" (italics for emphasis by us), was used without a purpose? This reply has to be in the negative.
85. Priority means precedence or going before (Black's Law Dictionary). In the present context, it would mean the right to enforce a claim in preference to others. In view of the splurge of 'first charge' used in multiple legislation, the Parliament advisedly used the word 'priority over all other dues' in the SARFAESI Act to obviate any confusion as to inter-se distribution of proceeds received from sale of properties of the borrower/dealer. If a secured asset has been disposed of by sale by taking recourse to the Security Interest (Enforcement) Rules, 2002 it would appear to be reasonable to hold, particularly having regard to the non-obstante clauses in sections 31 B and section 26E, that the dues of the secured creditor shall have 'priority' over all other including all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority.
88. Bare per confined only to the secured asset but could well spill over and any other asset of the defaulter in payment of State's dues could be put up for sale to realize such dues in terms of the MLR Code and the 1967 Rules usal of the 2016 Amending Act would show that the dues of the Central/State Governments were in the specific contemplation of the Parliament while it amended the RDDB Act and the SARFAESI Act, both of which make specific reference to debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority and ordains that the dues of a secured creditor will have 'priority', i.e., take precedence. Significantly, the statute goes quite far and it is not only revenues, taxes, cesses and other rates payable to the State Government or any local authority but also those payable to the Central Government that would have to stand in the queue after the secured creditor for payment of its dues.
150. The contention that rules are yet to be framed for making sub-section (4) of section 20B operational is wholly incorrect. By a notification dated 24th 13/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc January 2020 issued by the Department of Financial Services in the Ministry of Finance, Govt. of India, published in the Gazette of India of even date, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest(Central Registry) (Amendment) Rules, 2020 were duly notified whereby amendments were incorporated in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Central Registry) Rules, 2011 (hereafter '2011 Rules', for short). In view of the amendments that have now been incorporated in the 2011 Rules with effect from the date Chapter IV-A of the SARFAESI Act was made effective and enforceable, the relevant department of the State Government despite attachment orders being issued by the competent authority can only avoid compliance of sub-section (4) of section 26B at its own peril. We hold that attachment orders issued post 24th January 2020, if not filed with the Central Registry, any department of the Government to whom a person owes money on account of unpaid tax has to wait till the secured creditor by sale of the immovable property being the secured asset mops up its secured dues."
153. In these proceedings we are as much concerned with proclamation itself as much with attachment. Insofar as recovery pursuant to the MLR Code is concerned, not only the provisions contained therein but also the provisions contained in the 1967 Rules are to be complied with. Simply ordering an attachment is not enough; a proclamation has to be issued in the prescribed form and such proclamation must be made public by beating of drum and such other mode as specified in section 192 of the MLR Code and rule 11(2) of the 1967 Rules before the property attached is sold.
154. We are of the considered opinion, on facts and in the circumstances, that unless attachment of the defaulter's immovable property is ordered in the manner ordained by the MLR Code and as prescribed by the MRLR Rules and due proclamation thereof is made, even the creation of charge on such immovable property may not be of any real significance, not to speak of demonstrating with reference to evidence that the transferee had actual or constructive notice of such charge. If there has been an attachment and a proclamation thereof has been made according to law prior to 24 th January 2020 or 1st September 2016, i.e., the dates on which Chapter IV-A of the SARFAESI Act and section 31B of the RDDB Act, respectively, were enforced, the department may claim that its dues be paid first notwithstanding the secured dues of the secured creditors; but in the absence of an order of attachment being made public in a manner known to law, i.e., by a proclamation, once Chapter IV-A of the SARFAESI Act or section 31B, as the case may be, has been enforced, the dues of the secured creditor surely would have 'priority'. In other words, if the immovable property of the defaulter is shown to have been attached in accordance with law prior to Chapter IVA of the SARFAESI Act, or for that matter section 31B of the RDDB Act, being enforced, and such attachment is followed by a proclamation according to law, the 'priority' accorded by section 26E of the former and section 31B of the latter would not get attracted.
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155. To answer this question, we need to take note of some provisions of the Security Interest (Enforcement) Rules, 2002 (hereafter '2002' Rules, for short). However, it must be borne in mind that while a secured creditor is concerned only with sale of the immovable property, being the secured asset, and no other property of the defaulting borrower, the concern of the department need not necessarily be confined only to the secured asset but could well spill over and any other asset of the defaulter in payment of State's dues could be put up for sale to realize such dues in terms of the MLR Code and the 1967 Rules.
23. The dicta of the Full Bench in Jalgaon Janta Sahakari Bank Ltd. (supra) is squarely applicable to the present proceedings. In the ratio of the said judgment it has been held that even where there is an attachment order of the State Tax authorities prior to the secured assets' attachment, without any further steps being taken towards issuing a proclamation of sale, the State Tax Authorities cannot claim priority over the dues payable to the secured creditor, whose security interest is registered with CERSAI.
24. Section 26E of the SARFAESI Act, start with "Notwithstanding anything contained in any other law ......". Section 26E of the SARFAESI Act very clearly mentions that the secured creditors shall be paid in priority over all other debts and taxes. In the present proceedings it is Petitioner Bank who has registered its claim against the secured assets with CERSAI earlier i.e. 11 th December 2018, in view of the law as laid down by the Full Bench of this Court, in Jalgaon Janta Sahakari Bank Ltd. (supra) and as per Section 26E of the SARFAESI Act, the Petitioner Bank (secured creditor) will have priority over the revenues and taxes of the 15/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc State Government.
25. We have in our earlier order, passed in Indian Bank thr. Chief Manager vs. State of Maharashtra & ors. relying on Jalgaon Janta Sahakari Bank Ltd. and another (supra) also held that once the secured creditors have registered their Secured Interest prior to the Sale Tax Department registering their Secured Interest for its claim, Section 26-E comes into play. Paragraph 21 reads as under:-
21. Section 26E of the SARFAESI Act, start with "Notwithstanding anything contained in any other law ......". Section 26E of the SARFAESI Act very clearly mentions that the secured creditors shall be paid in priority over all other debts and taxes. In the present proceedings it is Petitioner Bank who has registered its claim against the secured assets with CERSAI earlier i.e. 4/10/2022, in view of the law as laid down by the Full Bench of this Court, in Jalgaon Janta Sahakari Bank Ltd. (supra) and as per Section 26E of the SARFAESI Act, the Petitioner Bank (secured creditor) will have priority over the revenues and taxes of the State Government.
26. In the present case, the order of attachment issued by the State Tax Department is dated 11th December, 2018. It is thereafter that steps have been taken to attach the immovable property. As noted above, the registration of the Bank Security Interest with CERSAI is dated 18 th December, 2014 which is much prior to the order of attachment issued by the State Tax Department.
27. In view of the clear position of law under Section 26-E of the SARFAESI Act and further the ratio as laid down by the Full Bench of this Court in Jalgaon Janta Sahakari Bank Ltd. (supra) and the judgment of 16/18 ADN ::: Uploaded on - 01/01/2025 ::: Downloaded on - 04/01/2025 03:25:33 ::: 10-WP-8943-2022.doc the Division Bench of this Court in Indian Bank thr. Chief Manager (supra), we have no hesitation to hold that the claim of secured creditor that is the Petitioner - Bank, will have preference over the claim of Respondents (State Tax Department).
28. Hence, for aforesaid reasons, we are of the view that the Writ petition deserves to be allowed in terms of prayer clause (b). The said prayer clause (b) reads as under :-
"(b) this Hon'ble Court be pleased to declare that the Petitioner has a prior and first charge over the said Property and shall be at liberty to enforce its right under the provisions of the SARFAESI Act in respect of the said property."
By an interim order dated 15th September 2022, the secured asset was permitted to be sold by way of an adhoc measure. The Petitioner was permitted to sell the secured asset and it was directed that from the sale proceeds a sum of Rs.1,50,00,000/- would be deposited in this Court for being invested in Fixed Deposit. It was directed that such sale was without prejudice to the rights of the parties and that the party succeeding in the present proceedings would be entitled to the aforesaid amount. Since the Writ Petition is now allowed, the Petitioner is entitled to receive the amount of Rs.1,50,00,000/- with accrued interest. The said amount be accordingly paid to the Petitioner.
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29. However, we hereby clarify that the Respondent No.5 (the Deputy Commissioner of State Tax) would be free to take such steps as they deem fit against the Respondent No.6 for recovery of Sales Tax dues as per law.
30. The Writ Petition is disposed of accordingly.
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