9911796707
TMI Blog2024 (5) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... all other debts and all revenues, taxes, cesses and other rates payable to the Central Government, State Government or local authority. In the facts of the present case, the Petitioner bank s borrowers had availed of financial assistance. To secure the same, on 15th July, 2015, the borrowers created a mortgage on the secured asset by deposit of title deeds. The intimation of mortgage was also given to the Joint Sub-Registrar, Haveli-22, Pune on the very same date. Thereafter, on 25th July 2015, the Petitioner bank duly registered its charge on the secured asset with CERSAI. In contrast, the State Tax Authorities have issued an attachment order only on 11th February, 2021 and have not even registered the same as contemplated under Section 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mandamus and/or Certiorari and/or any writ in the nature of Mandamus and/or Certiorari and/or any appropriate writ, order or direction, to the Respondent No. 4 to record/register the Sale Certificate/Sale Deed under the Registration Act, 1908 without marking any encumbrances of the Respondent No. 1 to 3 as and when approached by the Petitioner." 3. Mr. D'souza, the learned counsel appearing on behalf of the Petitioner, submitted that these reliefs are necessitated because the claim of the State Tax Authorities is recorded in the property card of the secured asset that is auctioned by the Petitioner-Bank to the successful auction purchaser. The secured asset is Flat No. 102, 1st Floor, Final Plot No. 537, Kunal Ozone, CTS No. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale proceeds thereof. Once this is the case, then their claim as noted in the property card of secured asset cannot stand and has to be deleted. 6. The learned AGP appearing on behalf of the State Tax Authorities fairly did not dispute the factual position narrated above. He, however, submitted that an attachment order has been passed in relation to the secured asset on 11th February, 2021. He submitted that in the event this Court holds in favour of the Petitioner, then, any surplus available with the Petitioner-Bank [after appropriating the sale proceeds towards its dues] ought to be paid over to the State Tax Authorities. To substantiate this argument, the learned AGP tendered a judgment of this Court in the case of Indian Overseas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are filed for the purpose of registration under the provisions of Chapter IV and Chapter IV-A, the claim of such secured creditor or other creditor holding the attachment order shall have priority over any subsequent security interest created upon such property and any transfer by way of sale, lease or assignment or licence of such property or attachment order subsequent to such registration, shall be subject to such claim. 10. Section 26-D talks about the right of enforcement of securities and stipulates that notwithstanding anything contained in any other law for the time being in force, from the date of commencement of Chapter IV-A, no secured creditor shall be entitled to exercise the rights of enforcement of securities under Chapter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of financial assistance. To secure the same, on 15th July, 2015, the borrowers created a mortgage on the secured asset by deposit of title deeds. The intimation of mortgage was also given to the Joint Sub-Registrar, Haveli-22, Pune on the very same date. Thereafter, on 25th July 2015, the Petitioner bank duly registered its charge on the secured asset with CERSAI. In contrast, the State Tax Authorities have issued an attachment order only on 11th February, 2021 and have not even registered the same as contemplated under Section 26-B (5) of the SARFAESI Act, 2002. All they have done is that in the property card of the secured asset, their claim is noted, and that too as late as on 16th April, 2021. Once these are the facts, and they are und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e creation of the mortgage over the asset would mean that the charge is over the asset. Once the security interest is enforced, the asset would no longer be available for further enforcement. The proposition canvassed by Mrs. Vyas would render Section 26-E meaningless, because if that were the legal position, the creation of priority in favour of the secured creditor would have no meaning. Put differently, according to the proposition suggested, the secured creditor would first enforce its charge against the asset and thereafter the MVAT Authorities would yet again enforce their charge against the very same asset to recover their dues. Thereafter if there are other security interests with an inferior priority, every single beneficiary of ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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