9911796707
TMI Blog2011 (6) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... 57,303.60, and for direction to make the continuance of the payment with a statutory charge in respect of the property measuring 18125 sq.ft. or 41.62 cents situated in Plot No.49 and also the property measuring 19760 sq.ft. or 45.36 cents situated in plot No.81 in Survey No.70(P) of Karai Village, Walajah Taluk, Vellore District, preventing from alienating the same. 2. The said plot Nos. 49 and 81 situated in SIDCO Industrial Estate, Ranipet, originally belonged to one M/s. Industries and Chemical Ltd., when the bank took action against the said M/s. Industries and Chemical Ltd., under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, "SARFAESI Act") in respect of failure and rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property under public auction for ₹ 28 lakhs from the Bank in exercise of its powers under the SARFAESI Act as a bona fide purchaser and therefore, the impugned order is illegal; that the petitioner has purchased the property from the first respondent Bank, has taken possession of the property on 18.06.2006, which is long before the attachment order stated to have been issued by the second respondent on 14.3.2007 and proclamation issued on 21.3.2007; that the said attachment order or proclamation was not recorded by the Sub Registrar, Walajahpet and that the petitioner being the bona fide purchaser, his right cannot be obstructed. 3. The second respondent having been served notice, has not chosen to appear, nor filed any counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, according to the learned senior counsel for the petitioner, the impugned order of the second respondent in effecting attachment and making claim from the petitioner is not valid in law. 5. On facts, it is clear that the petitioners purchase under SARFAESI Act from the first respondent Bank was on 14.06.2007, when the Bank by virtue of the powers conferred under Section 13(4) of the SARFAESI Act, has brought the property for sale and executed the certificate of sale. In the sale certificate, which has been registered with the Registrar, who has been sought to be impleaded by way of application by the petitioner, it is specifically stated that there is no encumbrance, and therefore, it has to be presumed that the petitioner being the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgaged assets on 15.2.2005 and sold the same. On 11.7.2005, the officers of the Commercial Tax Department informed the bank about outstanding dues of sales tax amounting to ₹ 3,62,82,768. The Assistant Commissioner issued notice under Section 39 of the Bombay Act for recovery of ₹ 48,48,614.35 of the Securitisation Act does not have overriding effect over Section 33-C of the Bombay Act." 8. While upholding the stand that the claim of arrears of sales tax will prevail over the claim of secured creditors like, Bank since the Government will have first charge over the property by construing the TNGST Act, 1959 a Division Bench of this Court in A. Senthil Kumar vs. Assistant Commissioner (CT), Koyambedu Assessment Circle, Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right can be exercised only from the first respondent Bank, who had already sold the property by exercise of its power under Section 13(4) of the SARFAESI Act, and the petitioner having purchased the property as a bona fide purchaser, cannot be affected by such claim of the second respondent. It is always open to the second respondent to make such claim to the first respondent and in my considered view, the petitioner being a bona fide purchaser for valuable consideration, without knowing the defective title, his right over the property cannot be affected. Therefore, absolutely there is no justification or legality on the second respondent in making the claim from the petitioner and restraining him from enjoying or alienating the property. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
