9911796707
TMI Blog2020 (12) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of seeking precedence over the claim of the Bank. The communication addressed by the respondent No.2 to the Talati of Bhunava Gram Panchayat, Taluka Gondal, Dist. Rajkot, to mutate appropriate charge over the immovable properties of the borrower (the respondent No.3) in the revenue record is not sustainable - Application allowed. - R/SPECIAL CIVIL APPLICATION NO. 15298 of 2020 - - - Dated:- 17-12-2020 - MR. J.B.PARDIWALA AND MR. ILESH J. VORA MR CZ SANKHLA(3243) for the Petitioner(s) No. 1 for the Respondent(s) No. 2 MR KM ANTANI, AGP for the Respondent(s) No. 1 MR JAIMIN R. DAVE, ADVOCATE for the Respondent(s) No. 3 ORDER MR. J.B.PARDIWALA, J. 1. By this writ application under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed not delve much into the facts giving rise to this litigation as our two orders dated 11.12.2020 and 12.12.2020 respectively would make the factual position quite clear. 3. The order dated 11.12.2020 reads thus : 1. This matter was notified yesterday before a learned Single Judge of this Court. The learned Single Judge passed the following order dated 10.12.2020; It is submitted by learned advocate for the petitioner that they have made numerous attempts to sell the property by way of auction and now there is a buyer who has offered to purchase the property and the entire exercise is required to be completed within 90 days. The matter is filed before the registry long back and if the aforesaid exercise is not completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and odd. The Bank wants to put the mortgaged properties to auction. It is pointed out that almost 27 attempts have been made in the past to put the mortgaged properties to auction but the Bank failed. The Bank is trying for the 28th time to put the mortgaged properties to auction, and this time, they have been successful to a considerable extent. The Bank wants to put one of the secured assets to auction, i.e., an immovable property in the form of factory land and building, situated at Revenue Survey No. 109 Paiki 1 of village Bhunava, Taluka: Gondal, District: Rajkot standing in the name of M/s. Shree Goverdhan Cotton Gin Pvt. Ltd. for industrial purpose, admeasuring 29745 square meters. Mr. Kavina pointed out that the Bank has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly sold. 7. It is pointed out that the period of 90 days is to expire on 14th December, 2020. Once this period expires, the Bank will have to undertake a fresh exercise for putting the secured assets to auction. 8. Mr. Kavina, the learned senior counsel would submit that in the peculiar facts of this case and also the predicament in which the Bank has been placed, either this Court may extend the period of three months as provided in Sub-clause (4) of Rule 9 by couple of days or stay the operation of the charge created by the VAT Department over the property. At this stage, Mr. Kavina further pointed out that the law is well settled in view of the two pronouncements of this Court that the Bank will have precedence over the charge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the balance 75% of the auction sale price with the Bank. According to Mr. Kavina, as on date, the Bank has been able to fetch the entire auction sale price of approximately ₹ 10 Crore and odd. The next step in the process would be to issue the final sale certificate to the auction purchaser. 3. Mr. Antani, the learned AGP, has also discussed the matter with the concerned authority. 4. Yesterday, while hearing this matter, we were considering whether we should extend the time at the instance of the Bank for the auction purchaser to deposit the balance amount of the auction sale price. However, in the wake of the development, as noted above, we need not now go into the issue whether it would be permissible for this Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the writ applicant, the Section 26(E) of the SARFAESI Act would override the charge of the State Government under Section 48 of the VAT Act. 8. The issue involved in this litigation is no longer res-integra in view of the two pronouncements of this Court i.e. (i) Kalupur Commercial Coop. Bank Ltd. Vs. State of Gujarat (SCA/17891/2018) and (ii) Bank of Baroda through its Asst. 9. In view of the dictum of law as laid in the above referred judgments of this Court, the Bank i.e. the writ applicant has the first charge over the secured assets. The State cannot rely upon the Section 48 of the VAT Act for the purpose of seeking precedence over the claim of the Bank. 10. Mr. Antani, the learned AGP appearing for the State - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
