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TMI Blog2019 (12) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... India and State Tax Deptt., Govt. of Gujarat. Application is admitted to the extent that the concerned Dept. of the State Government is directed to remove the attachment/charge on the properties of the Corporate Debtor under Liquidation; already sold on 26.03.2018 under e-auction by the Liquidator, from the Register maintained by the Mamlatdar, Revenue Deptt., Govt. of Gujarat. The peaceful possession of the said property be handed over to the Buyer, M/s. Haq Steels Metaliks Ltd. - I.A. No. 143 of 2019 in C.P. No. (IB) 21/10/NCLT/AHM/2017 - - - Dated:- 18-12-2019 - Harihar Prakash Chaturvedi, Member (J) and Prasanta Kumar Mohanty, Member (T) For the Appellant : Monaal J. Davawala, Advocate For the Respondents : Hiren J. Trivedi, Advocate ORDER Prasanta Kumar Mohanty, Member (J) 1. The instant Interlocutory Application is filed by the Applicant being the successful bidder in e-auction held on 08.03.2018 for sale of the properties in question of the Respondent No. 1 company under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 ( Code for short) for the following reliefs - a) Order and direct the Respondent No. 2 to take necessary steps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate was also executed between the Liquidator and the Applicant. The description of the immovable properties is are under - All those pieces or parcels of freehold Non-Agricultural land situate lying and being at National Highway No. 8-A, Samakhiyali, Taluka Bhachau, Dist. Kutch bearing Revenue Survey No. 529/1, 529/2, 530, 531, 532/1, 532/2, 533, 534, 538/1/Paiki admeasuring collectively 1,76,207.00 sq.mtrs plus Green Belt area of 34,635.00 sq. mtrs i.e. aggregating to 2,10,842.00 sq. mtrs of mouje Piparapati of Bhachau Taluka in the Registration District Kutch and Sub-district of Bhachau together with buildings and structures approximate admeasuring 5100.00 sq. mtrs or thereabouts and the said lands and buildings are bounded as follows: 1. Survey Nos. 529/1, 529/2, 530, 531 On North : Cart Track On South : National Highway On East : Survey Nos. 535/1, 532/2 On West : Cart Track 2. Survey Nos. 532/1, 532/2, 533, 534 On North : National Highway On South : Agriculture land of others On East : Hotel Ashirvad On West : Hotel Royal 5. It is submitted that the transfer of interest in the properties in question has been duly regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted stage and not in proper format as prescribed under Insolvency and Bankruptcy Code, 2016. Hence, the same was never accepted by the Respondent No. 1. Further, a category wise list of stakeholders along with details of each stakeholders was prepared and filed before this Adjudicating Authority on 29.01.2018. 10.2 It is further submitted that as per Section 53 read with Section 238 of the Code, it is clear that the Code prevails over any other law in force and accordingly, the Applicant being buyer of the properties in question should be able to enjoy it absolutely and without any encumbrances from Respondent No. 2 or any other statutory authority. 10.3 Hence, it is submitted that this Tribunal may allow the application and grant the reliefs sought by the Applicant in para 6 of the application. 11. Further, the State Tax Officer (3), Respondent No. 2 has filed its reply on 13.03.2019, submitting to dismiss the application filed by the Applicant and praying this Adjudicating Authority to direct the Liquidator to compensate for payment of dues towards Respondent No. 2 as secured creditor and for contravention of rights as provided by Section 52 of the Code. 12. The Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid calculations at the end of the written submissions. 13.1 It is denied that by virtue of the fact that an attachment was put by Commercial Tax Department on properties of the Corporate Debtor, would make the Respondent No. 2 the secured creditor by virtue of Section 2(30) and 3(31) of the Code. Further, the Respondent No. 1 cited various judgments of Hon'ble Apex Court and submitted that the dues of the Sales Tax Dept are Operational Creditor under Section 5(20) of the Code and cannot be said to be secured creditor under Section 3(30) read with Section 3(31) of the Code. Further it is also submitted that Section 238 of the Code will override anything inconsistent contained in any other enactment. It is also submitted that the Respondent No. 2 claims its charge by virtue of Section 48 of Gujarat Value Added Tax, 2003, which cannot be said a transaction between the company in liquidation and the State Tax Dept. Further, it is also submitted that the secured creditor has to prove the existence of security interest on the basis of three methods as enshrined in Regulation 21, which has not been done by the Respondent No. 2 while filing their claim. It is further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors etc., in distribution of assets of the Corporate Debtor. The dues of the Government are not considered as a secured debt under Section 3(31) of the Code, do not get precedence over secured creditors under Section 53 and do not fall in Clause(b) of Section 53, but fall under Clause(e) of Section 53. Hence, it is clear that the amount dues to the Central Govt. and State Govt. shall be paid after the dues of the financial secured creditors are paid. In this case, the admitted dues of the secured creditor were ₹ 139.60 Crores, whereas the liquidation proceeds of ₹ 35.60 crores could satisfy 25.5% of the secured financial creditor's admitted dues. Hence, there is no assets available for payment of dues of the Income Tax Deptt., Govt. of India and State Tax Deptt., Govt. of Gujarat. 15. M/s. Haq Steels Metaliks Ltd., erstwhile M/s. Haq Enterprises Pvt. Ltd., bought the property being Land(factory premises) through e-auction as the highest bidder and paid ₹ 35.70 Crores. The State Bank of India, being the lead bank of the secured lenders was in possession of the assets of the Corporate Debtor pursuant to the various proceedings initiated under the SA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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