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TMI Blog2011 (7) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... ebts Recovery Tribunal-I, Chennai. Those properties were mortgaged with the 3rd Respondent Bank by the Debtor on 06.09.2001. The 3rd Respondent Bank initiated auction for Recovery of debts due to them before the Debts Recovery Tribunal. As the order of the Debts Recovery Tribunal was not complied with by the Debtor, the properties were brought to sale on 23.12.2009 as stated above, which was a public auction. Apart from the Petitioner, others also participated in the auction. 2. The Petitioner was the highest bidder who offered a sum of Rs. 1,26,50,000/-. Since he was the highest bidder, the Recovery Officer confirmed the sale and issued a Certificate of Sale on 27.01.2010. After obtaining the sale certificate, the Petitioner approached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was conducted by the Recovery Officer, Debts Recovery Tribunal-II on 16.12.2009 for certain properties. Those properties were mortgaged on 29.08.2002 with the 3rd Respondent Bank by the Debtor and he failed to clear the debts. Hence, the 3rd Respondent Bank approached the Debts Recovery Tribunal-II, Chennai for recovery of the debts. The Debts Recovery Tribunal-II, Chennai passed an order, directing the debtor to clear the debts, which was due to be paid to the 3rd Respondent and the same was not complied with. Therefore, the Debts Recovery Tribunal-II, Chennai, directed to conduct Public Auction for the above properties. 6. In the auction sale, the Petitioners were the highest bidders. The Petitioners were the highest bidders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing for the Petitioners submits that the properties, which were purchased by the Petitioners in the Public Auction conducted by the Recovery Officer, were mortgaged by the debtor much prior to the ITCP-1 certificate issued by the Income Tax Department. According to him, the properties involved in W.P. No. 5329 of 2010 were subjected to mortgage on 06.01.2001 and in W.P. No. 5593 of 2010, the mortgage took place on 29.08.2002, while the ITCP-1 Certificate of the Income Tax Department was issued on 26.09.2007. The attachment by the Income Tax Department took place on 05.01.2010 and the same could relate back to the date of issuance of ITCP-1 certificate, i.e. attachment could relate back to 26.09.2007 under Rule 51 of the II Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded in ITCP-1 notice. It is not in dispute that the Mortgage of the properties, which were brought to the Public Auction on 23.12.2009 in the case of the properties involved in W.P. No. 5329 of 2010 and on 16.12.2009, in the case of the properties involved in W.P. No. 5593 of 2010, took place prior to ITCP certificate. The 3rd Respondent is a secured Creditor. The 3rd Respondent Bank initiated auction for recovery of debts, pursuant to the non payment of debts on the basis of the mortgage, which resulted in auction sale took place on 23.12.2009 for the properties concerned in W.P. No. 5329 of 2010 and on 16.12.2009 for the properties concerned in W.P. No. 5593 of 2010. It is also admitted that the Petitioner is the highest bidder in the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction sale of the properties, pursuant to the order passed by the Debts Recovery Tribunal. As the Petitioner being the highest bidder, the recovery officer issued a sale certificate. The first Respondent refused to file the sale certificate by making necessary entries in the Book No. I, in accordance with Section 89(4) of the Registration Act, on the ground that the properties were attached by the Income Tax Department. In my view, the Income Tax Department can not claim a right over the properties, which were already brought to auction sale, on the ground that the properties were attached by them on 05.01.2010. The tax arrears is nothing but crown debts. The crown debts could have priority over the unsecured debts. But, the crown debts cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h doctrine of first charge/priority over the property cannot prevail over secured debts of a person. If the statute permits to have first charge/priority over the property having regard to the plain meaning of Article 372 of the Constitution of India, then only the State can claim priority over an unsecured debt. The aforesaid Division Bench judgment of this Court squarely applies to this case. 16. Therefore, the Petitioners are entitled to succeed and accordingly, the writ petitions are allowed and a direction is issued to the first Respondent to file a copy of the sale certificates concerned in the respective writ Petitioners, by making necessary entries in the Book No. I, in accordance with Section 89(4) of the Registration Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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