Viraat Ispat Limited and another vs Assistant Commissioner of Sales Tax and others

Dr. D.Y. Chandrachud, J.—The Petitioners have impugned in these proceedings under Article 226 of the Constitution an auction notice issued by the Assistant Commissioner of Sales Tax on 13 September 2011 for the sale of certain immovable property belonging to the Petitioners for the recovery of dues in the amount of Rs. 1.22 Crores.

The Central Bank of India had sanctioned credit facilities to the Petitioners. On a default in the payment of the dues a notice was issued u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for a claim in an amount of Rs.9.67 Crores. On 27 October 2008 a measure was taken u/s 13(4). The debt of the bank was assigned to the Second Respondent which is an asset reconstruction company on 30 March 2011. The Second Respondent took symbolic possession on 24 June 2011. On 13 September 2011 as noted earlier an auction notice has been issued by the Assistant Commissioner of Sales Tax, C621 Palghar for the auction of the immovable property of the Petitioners situated at the MIDC area of Tarapur for the recovery of dues.

On behalf of the Petitioners it has been urged that - (i) u/s 13(4) read with Section 13(6) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the property vests in the Second Respondent on a measure being taken; (ii) the Securitisation Act is a legislation subsequent to the Maharashtra Land Revenue Code and by virtue of the provisions of Section 35 has overriding force and effect; (iii) The Petitioners do not challenge the warrant of attachment levied by the First Respondent nor do they contest the priority created in favour of the First Respondent but the submission of the Petitioners is only that the property can be put to sale only at the behest of the secured creditor. The authorized officer is empowered to make a disbursement under Rule 9(7) of the Security Interest Rules.

On the other hand, counsel appearing on behalf of the Revenue relied on the judgment of the Supreme Court in Central Bank of India Vs. State of Kerala and Others, and submitted that it is now a settled position in law that (i) The Securitisation Act does not create a first charge on immovable property; (ii) Section 38C of the Bombay Sales Tax Act 1959 creates a first charge on the property in respect of the sales tax dues of the State Government; (iii) Hence the provisions of Section 35 of the Securitisation Act would not override Section 38-C of the Bombay Sales tax Act 1959.

The issue which falls for determination in these proceedings is no longer res intergra. In Central Bank of India (supra), the Supreme Court has held that (i) The Securitisation Act - does not create a first charge in favour of banks, financial institutions or secured creditors qua the property of the borrower; (ii) A first charge on property is created by state legislation such as Section 38C of the Bombay Sales Tax Act 1959 which cannot be destroyed by implication or inference notwithstanding the fact that banks fall in the category of secured creditors; (iii) The provisions contained in Section 38C of the Bombay Sales Tax Act are not inconsistent with the provisions of the Securitisation Act so as to attract the non obstante clause contained in Section 35 of the Securitisation Act and (iv) Where a first charge is created statutorily on immovable property, the charge operates on the entire property of the dealer, including the interest of the mortgagee. When a first charge is created by operation of law over any property, that charge would have precedence over an existing mortgage. In holding thus, the Bench of Three Learned Judges of the Supreme Court has affirmed the correctness of the view taken inter alia in the earlier judgment in State Bank of Bikaner and Jaipur Vs. National Iron and Steel Rolling Corporation and Others, The Supreme Court also affirmed the view which was taken by a Division Bench of this Court consisting of Hon''ble Mr. Justice '' R.M. Lodha (as His Lordship then was) and Mr. Justice J.P. Devadhar in The Thane Janata Sahakari Bank Ltd. Vs. The Commissioner of Sales Tax, Asstt. Commissioner of Sales Tax, The Office of the Assistant Commissioner (Assessment) and The State of Maharashtra, . The law laid down by the Supreme Court is summarized in the following observations :

On the basis of the above discussion, we hold that the DRT Act and the Securitisation Act do not create first charge in favour of banks, financial institutions and other secured creditors and the provisions contained in Section 38C of the Bombay Act and Section 26B of the Kerala Act are not inconsistent with the provisions of the DRT Act and the Securitisation Act so as to attract non obstante clauses contained in Section 34(1) of the DRT Act or Section 35 of the Securitisation Act.

Admittedly, and on this there is no dispute before the Court, the property has been put to sale by the First Respondent in realisation of the sales tax dues. Section 38-C of the Bombay Sales Tax Act 1959 provides that notwithstanding anything contained in any contract to the contrary but subject to any provision regarding first charge in any Central Act for the time being in force, any amount of tax, penalty, interest or any other sum, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or, as the case may be, person. Section 38B stipulates that for the purpose of effecting the recovery of the amount of tax, penalty and interest due and recoverable from any dealer or other person by or under the provisions of the Act as arrears of land revenue, the Commissioner of Sales Tax shall have all the powers and perform all the duties of the Commissioner under the Maharashtra Land Revenue Code 1966. The statutory first charge is not created under the Maharashtra Land Revenue Code but specifically under the provisions of Section 38-C of the Bombay Sales Tax Act 1959. The procedure which is envisaged in the Maharashtra Land Revenue Code is, however, statutorily permitted to be utilized by the provisions of Section 38B. In view of the principle of law laid down by the Supreme Court, the debt of the Second Respondent does not result in a first charge under the Securitisation Act. On the contrary, sales tax dues constitute a first charge over the property, by virtue of the provisions of Section 38C of the Bombay Sales Tax Act, 1959.

The judgment of the Supreme Court in Transcore Vs. Union of India (UOI) and Another, which was sought to be relied upon by the Petitioners does not deal with the issue in question which, on the other hand, is covered by the subsequent decision in Central Bank of India. The issues which fell for determination in Transcore are summarised in paragraph 29 of the judgment as follows :

(i) Whether the banks or financial institutions having elected to seek their remedy in terms of DRT Act, 1993 can still invoke the NPA Act, 2002 for realizing the secured assets without withdrawing or abandoning the O.A. filed before the DRT under the DRT Act.

(ii) Whether recourse to take possession of the secured assets of the borrower in terms of Section 13(4) of the NPA Act comprehends the power to take actual possession of the immovable property.

(iii) Whether ad valorem Court-fee prescribed under Rule 7 of the DRT (Procedure) Rules, 1993 is payable on an application u/s 17(1) of the NPA Act in the absence of any rule framed under the said Act.

In paragraph 24 of the judgment the Supreme Court observed that Section 13(6) of the Securitisation Act shows that once the bank has taken possession of the asset, the right title and interest in that asset can be dealt with by the bank as if it is the owner of the asset and the asset would vest in the bank free of all encumbrances. In paragraph 25 it has been observed, having regard to the provisions of Section 35, that if Section 13(4) comes in conflict with, say the provisions of state land revenue law, then notwithstanding such conflict, the provisions of Section 13(4) shall override the local law. Transcore does not deal with a situation where a statutory first charge is created by state legislation such as u/s 38C of the Bombay Sales Tax Act 1959. That situation has specifically been dealt with in the subsequent judgment of three Learned Judges in the Central Bank of India (supra). The action which has been taken by the First Respondent of realising the dues of the Sales tax department by putting the immovable property to sale cannot be faulted. No case for interference is made out. The Petition is accordingly dismissed.