9911796707
TMI Blog2024 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Section 142A of the Customs Act. The reason being that Section 142A itself is a provision which saves the provisions of the SARFAESI Act under which the action was resorted by the petitioner to recover its dues from respondent No. 2. In any event, it is well settled that unless there is a preference given to a Crown debt by a statute, the dues of a secured creditor like the petitioner would have preference over Crown debts. It may also be observe that in the present case the impugned letter has been addressed at the stage of investigation. It is averred in the reply affidavit that a final order-in-original is passed against respondent No. 2. It is informed by the learned Counsel for the petitioner that such order is subject matter of challenge in independent proceedings. Thus, the impugned communication in any event would pale into insignificance. The impugned communication dated 2 November 2015 is quashed and set aside - petitioner is permitted to proceed further in regard to the actions against respondent No. 2 and the secured assets, as initiated under the SARFAESI Act - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... of respondent No. 2 was declared as Non-Performing Asset ( NPA ). The petitioner in these circumstances intended to proceed to exercise its powers under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') to recover the amounts. Accordingly, a notice was issued to respondent No. 2 under the provisions of Section 13(2) of the SARFAESI Act. As despite issuance of such notice, respondent No. 2 did not come forward to pay the amounts as defaulted and respondent No. 2 continued to be a defaulter. The petitioner, thus initiated action by invoking Section 14 of the SARFAESI Act, so as to obtain appropriate orders from the District Magistrate, Raigad. However, before any order could be passed on such proceedings, the impugned letter dated 2 November 2015 came to be addressed to the petitioner, on behalf of the Directorate of Revenue Intelligence / respondent No. 1 The contents of the said letter read thus:- "F. No.DR1/MZU/B/INT-66/2015 Dated: 02.11.2015. The Manager, Bank of Maharashtra, Nerul Township Branch, Sahayof Aptt., Sector 9, Nerul, Navi Mumbai - 400706 Gentleman, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner not to take any decision on any property or the documents of respondent No. 2, available with the petitioner in its capacity as a secured creditor, without consulting respondent No. 1. It was also recorded that on completion of the investigation, respondent No. 1 would forward a notice to the petitioner for information. 5. Considering such letter to be an embargo on the further action to be taken under the SARFAESI Act, the petitioner is before the Court praying for the aforesaid reliefs. 6. Learned Counsel for the petitioner in support of the reliefs as prayed for in the petition, would submit that respondent No. 1 on the basis of such letter would not have jurisdiction or authority to restrain the petitioner from proceeding with the action which the petitioner had initiated against respondent No. 2 under the provisions of the SARFAESI Act. Referring to the provisions of Section 142A of the Customs Act, 1962, it is submitted that in respect of any duty, penalty or interest, what is provided for in the said provision is that respondent No. 1 would have first charge on the property of the assessee. It is submitted that the consequence under Section 142A can be envisaged by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner are concerned, certainly the petitioner has acted under the provisions of the SARFAESI Act which is a Special Act in so far as such recovery is concerned. Section 35 of the SARFAESI Act would ordain that the provisions of such Act shall have an overriding effect over the other laws. Section 35 of the SARFAESI Act reads thus:- "35. The provisions of this Act to override other laws. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 10. Thus on a cumulative reading of Section 142A of the Customs Act and Section 35 of the SARFAESI Act, it would be clear that the recovery as initiated by the petitioner under the SARFAESI Act cannot be impeded by the respondents by taking recourse to Section 142A of the Customs Act. The reason being that Section 142A itself is a provision which saves the provisions of the SARFAESI Act under which the action was resorted by the petitioner to recover its dues from respondent No. 2. In any event, it is well settled that unless there is a preference given to a Crown debt by a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to inform them about the action taken by the Petitioner and the quantum of sale proceeds, will give necessary information to the Respondent-Custom Authorities." We find ourselves in complete agreement with the view taken by the co-ordinate Bench of this Court in the case Bank of India Vs. Rajendra Vitthal Shinde & Ors. (supra). 12. We may also observe that in the present case the impugned letter has been addressed at the stage of investigation. It is averred in the reply affidavit that a final order-in-original is passed against respondent No. 2. It is informed by the learned Counsel for the petitioner that such order is subject matter of challenge in independent proceedings. Thus, the impugned communication in any event would pale into insignificance. 13. Be that as it may, we kept open all the contentions of respondent No. 1 in regard to any recovery it may have against the parties whose names are set out in the impugned communication, and which can be certainly dealt by respondent No. 1 in a manner known to law. However, in so far as the action as initiated by the petitioner under the SARFAESI Act is concerned, the same needs to proceed further, for the reasons as set out ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
