2010 (8) TMI 823 - HC - VAT and Sales Tax

Auction notice challenged on the ground that the Central Bank of India, Karaikudi Branch, the petitioner herein has sanctioned loan to the second respondent to construct a factory and purchase of new and second hand machineries besides meeting out their working capital requirements Held that - The bank is a secured creditor within the meaning under section 2(d) of the SARFAESI Act, 2002. The assets are secured assets with the bank and that the bank being a secured creditor, has the first charge/priority over the property. In such circumstances, the auction notice is liable to be set aside. Accordingly it is set aside. The writ petition is allowed.

Summary

Issues:
1. Validity of auction notice challenged by the petitioner due to outstanding loan amount.
2. Priority of bank debt over crown debt in recovery proceedings.

Analysis:
1. The judgment involves a challenge to an auction notice issued by the Assistant Commercial Tax Officer based on outstanding loan amounts due from the second respondent to the petitioner bank. The petitioner contended that the loan was not repaid as per terms, leading to a substantial outstanding amount. The Assistant Commercial Tax Officer ordered the auction of the second respondent's property to recover tax arrears. The petitioner argued that the bank, as a secured creditor, should have priority over the tax arrears. The court noted that the bank had a security interest in the property and referred to relevant legal precedents supporting the priority of secured creditors in such cases.

2. The central issue addressed in the judgment was the priority of bank debt over crown debt in recovery proceedings. The court extensively discussed legal principles and previous judgments to establish that a secured creditor, such as a bank, holds priority over unsecured debts owed to the state. Reference was made to decisions confirming that the bank's secured interest in the property gives it precedence over tax arrears. The court cited cases where it was held that unless a statute explicitly provides for the state to have a first charge over the property, the claim of a secured creditor would prevail. The judgment emphasized that the bank, being a secured creditor under the SARFAESI Act, had the first charge over the property, leading to the setting aside of the auction notice issued by the tax authority.

In conclusion, the judgment upheld the priority of the bank's secured debt over crown debt in recovery proceedings, setting aside the auction notice issued by the tax authority. The decision was based on legal precedents establishing the rights of secured creditors and the lack of statutory provisions granting priority to state debts over secured debts.