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TMI Blog2021 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... ANT COMMISSIONER COMMERCIAL TAX DEPARTMENT, THE ASSISTANT COMMISSIONER OF CUSTOMS BONDS, THE SUB-REGISTRAR [ 2020 (10) TMI 150 - MADRAS HIGH COURT] was pleased to hold that the proceedings under the SARFAESI Act would have primacy, especially in a case where the mortgage in favour of the Bank was earlier. In the case on hand also, the registered mortgage was admittedly prior. The 9th respondent in W.P.(MD)No.6976 of 2020 / 8th respondent in W.P.(MD)No. 1101 of 2021 sought for an attachment in an arbitration proceedings, in which, the petitioners Bank was obviously not a party, as the transaction has got nothing to do with it. The said order was also subsequent to the mortgage created in favour of the petitioner. Now, a third party ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A statutory demand notice was issued by the petitioner, followed by sale notice. The properties were brought up for sale in the year 2019. The respondents 7 8 in W.P.(MD)No.6976 of 2020 and the 7th respondent in W.P.(MD)No.1101 of 2021 became the successful bidders. In pursuant to the payment made, sale certificates were issued. When the aforesaid respondents along with the petitioner Bank went for registration, they were accordingly denied by the 1st respondent on the ground that the 9th respondent in W.P.(MD)No.6976 of 2020, who is also arrayed as 8th respondent in W.P.(MD)No.1101 of 2021, has lent financial assistance to the private respondents, being the borrowers and on their failure to repay the amount, by complying with the terms a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.L.Kashyap Sons Ltd., New Delhi and others; iii) 2019 Supreme (SC) 1198, in the case of M/s.Sterling Industries v. Jayprakash Associates Ltd., and others; iv) W.P.(C)No.3875 of 2017 (H) in the case of South Indian Bank, Thrissur and another v. Sub Registrar, Ernakulam, Kochi and others [Kerala High Court]; v) W.P.(MD)No.4861 of 2018 in the case of Tamilnad Mercantile Bank Ltd., Virudhunagar v. Joint Sub Registrar No.1, Virudhunagar and others; vi) W.P.(MD)No.19694 of 2019 in the case of Tamilnad Mercantile Bank Ltd., Madurai v. Sub Registrar, Chockikulam SD, Madurai and others; vii) W.P.Nos.8546 of 2020, etc., batch, in the case of M/s.Aachi Masala Foods Pvt Ltd., Chennai v. M/s.Edelwiss Assets Reconstruction Co., Ltd., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of this Court, in which one of us [Hon'ble Mr.Justice M.M.SUNDRESH] is a party, in a batch of writ petitions in W.P.(MD)Nos.8546 of 2020, etc., batch, by order dated 09.09.2020, was pleased to hold that the proceedings under the SARFAESI Act would have primacy, especially in a case where the mortgage in favour of the Bank was earlier. The aforesaid decision was rendered after taking note of the judgment rendered by the Division Bench of the Gujarat High Court in Bank of India v. State of Gujarat [Manu/GJ/0130/2020] and a Full Bench judgment of this Court in Assistant Commissioner (CT), Annasalai III Assessment Circle v. Indian Overseas Bank [(2016) 6 CTC 769]. 9. Reliance has been made on the order passed by the learned Single J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as there was a subsisting mortgage on that date. 11. The learned Counsel appearing for the 9th respondent in W.P.(MD)No. 6976 of 2020 / 8th respondent in W.P.(MD)No.1101 of 2021 submitted that there is a procedure violation. We are not concerned with the said issue. The question for consideration is as to whether the earlier mortgage would prevail as against the subsequent interim attachment. The question of procedural violation can only be raised by the borrower, who did not do so. Therefore, the said contention has got no relevance to the case on hand. 12. The submission made on the maintainability of the writ petitions is also rejected. We are not on the merits of the order passed by the Arbitration Tribunal, which is by way of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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