2021 (8) TMI 444 - HC - VAT and Sales Tax

Priority of Charge - First Right of secured creditor and Sales Tax Department - Seeking direction to register sale certificate on receipt of stamp duty and registration charges - evasion of tax - attachment of property - encumbrance in the property - HELD THAT - The respondent no. 5 has purportedly refused to register the sale certificate relying on Clause (i) of Sub-Rule (1) of Rule 44 of the Rules of 1961, though it is not specifically stated in the affidavit-in-reply filed by the respondent no. 5 or during the submissions made on behalf of the respondents. It needs to be noted that Sub-Section (1) of Section 22-A clearly provided that only if a notification is published in the Official Gazette declaring that registration of any document or class of document is opposed to any public policy, only then the question of refusal of registration of the document will arise. Even otherwise, since Section 22-A is no longer on the statute book, registration of the sale certificate could not have been refused on the ground of same being in contravention of Section 22-A of the Act of 1908. The ground of encumbrance to refuse registration of a document is in relation to marketable title of the property. There is encumbrance of the Department of Sales Tax. The Registering Officer shall have to ascertain whether the requisite permission from the Competent Authority under the relevant enactment has been obtained and is required to annex the said permission, if it is prohibited. The Registering Officer will also have to ascertain whether the document presented for registration is contrary to any of the terms and conditions mentioned in the NOC granted by the Competent Authority. Undisputedly, in the present matter, the respondents have not shown any such statutory prohibition which enables the Registering Officer to refuse registration of the sale certificate. Thus, it is the duty of the respondent no. 5 to register the sale certificate issued in favour of the auction purchaser by the Authorized Officer under the provisions of the Rules of 2002. The respondent no. 7 is duty bound to take action against the defaulter for evading taxes and recovering its dues by attaching their movable properties - respondent no. 5 is directed to register the sale certificate dated 06/07/2020 subject to compliance of Ground Nos. 2 and 3 and on payment of stamp duty as per the ready reckoner and after following all the other requirements of law as per the Registration Act, 1908 - the registration of the sale certificate shall not be refused on the basis of encumbrance of the respondent no. 7. Application disposed off.

Summary

Issues Involved:
1. Direction to Sub-Registrar to register sale certificate.
2. Action against defaulters for evading taxes.
3. Declaration regarding the State's entitlement to recover dues under Section 26-E of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

Detailed Analysis:

1. Direction to Sub-Registrar to Register Sale Certificate:
The petitioner, a Public Sector Nationalized Bank, sought a direction against the Sub-Registrar (Class-I) to register a sale certificate upon receipt of stamp duty and registration charges. The main grievance was the refusal by the Sub-Registrar to register the sale certificate dated 28/09/2020 issued under the Security Interest (Enforcement) Rules, 2002.

The Court scrutinized the grounds for refusal, which included issues such as improper routing of the document, lack of demarcation and construction area details, absence of a certified copy of the 7/12 Extract, improper description of machinery, and the need for stamp duty adjudication. The Court found that most of these grounds were either rectifiable or irrelevant under the Registration Act, 1908.

The Court emphasized that the Registering Officer's role is administrative, not quasi-judicial, and he cannot adjudicate on the marketable title of the property. The Court cited the Supreme Court's decision in Satyapal Anand vs. State of Madhya Pradesh, affirming that the Registering Officer should not evaluate the title or irregularity in the document but only ensure compliance with the provisions of the Registration Act, 1908.

The Court directed the Sub-Registrar to register the sale certificate subject to compliance with the necessary details and payment of stamp duty, and clarified that registration should not be refused based on the encumbrance of the Sales Tax Department.

2. Action Against Defaulters for Evading Taxes:
The petitioner also sought a direction against the Sales Tax Department to take action against tax defaulters and not obstruct the sale of properties by the Bank for recovery of its dues. The Court acknowledged the duty of the Sales Tax Department to take action against defaulters and recover dues by attaching their movable properties. However, the Court declined to grant a general direction against the Sales Tax Department not to obstruct the sale of properties by the Bank, noting that such a direction would need to be adjudicated on a case-by-case basis.

3. Declaration Regarding the State's Entitlement to Recover Dues:
The petitioner sought a declaration that the State of Maharashtra is not entitled to recover dues in view of Section 26-E of the SARFAESI Act, which provides priority to the secured creditor's dues over other claims. The Court referred to previous judgments, including State Bank of India vs. State of Maharashtra, ASREC (India) Limited vs. State of Maharashtra, and Axis Bank Limited vs. State of Maharashtra, which held that the secured creditor's charge under the SARFAESI Act takes precedence over the State's tax dues.

The Court affirmed this position, stating that the priority of the secured creditor's charge under Section 26-E of the SARFAESI Act would rank above the State's charge for tax dues under the MVAT Act. However, the Court did not adjudicate on the issue of recovery of sales tax dues from the auction purchaser, leaving it to be determined as per law.

Conclusion:
The Court quashed the communication dated 19/10/2020 from the Sub-Registrar refusing to register the sale certificate and directed the Sub-Registrar to proceed with the registration subject to compliance with specified conditions. The Court also reaffirmed the priority of the secured creditor's charge under Section 26-E of the SARFAESI Act over the State's tax dues. The petition was partly allowed, with specific directions for registration and clarification on the non-adjudication of sales tax recovery from the auction purchaser.