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TMI Blog2024 (7) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (9) TMI 1018 - GUJARAT HIGH COURT] after analyzing provisions of Section 31B of the RDB Act and provisions of Section 26E of the SARFAESI Act with regard to the preferential right of the State to recover the debts over the other creditors held 'The language of Section 48 of the VAT Act is plain and simple and the phrase 'any amount payable by a dealer or any other person on account of tax, interest or penalty' therein assumes significance. The amount could be said to be payable by a dealer on account of tax, interest or penalty once the same is assessed in the assessment proceedings and the amount is determined accordingly by the authority concerned. Without any assessment proceedings, the amount cannot be determined, and if the amount is yet to be determined, then prior to such determination there cannot be any application of Section 48 of the VAT Act.' The Full Bench of the Bombay High Court has therefore rightly held that Section 31B of the RBD Act can only be invoked when there is determination of debt due and payable as provided under the RDB Act with the intervention of the Court and in that scenario, it was observed with regard to the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch sale consideration. It may happen that even though the secured creditor may have the first charge over the property and respondent State might have sold the property then in that circumstances also the question would arise whether the secured creditor would be entitled to recover such sale consideration from the State Authority by virtue of first charge over the property - In such circumstances, as held by this Court in case of Kalupur Commercial Cooperative Bank and as per the decision of the Full Bench of the Bombay High Court, the secured creditor would have the first charge in view of the priority of the charge as prescribed in Section 26E of the SARFAESI Act and Section 31B of the RBD Act as the case maybe. Now the question would arise whether the subsequent decision of the Hon ble Apex Court in case of Rainbow Papers Ltd. [ 2022 (9) TMI 317 - SUPREME COURT] would be applicable to the issue as to the priority of the charge of the secured creditor visa-vis the provision of Section 48 of the VAT Act or not as in the said decision the Hon ble Apex Court has considered the provisions of the IBC vis-a-vis the provision of Section 48 of the VAT Act. It would be therefore necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal was issued by this Court, thereafter the matter was taken up for hearing from time to time. 4. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: 8. a) That the Hon'ble Court may be pleased to issue an appropriate writ, order or direction to the effect that statutory charge under section 48 of the Gujarat Value Added Tax Act, 2003 ceased to operate over Plot nos. B/17 to B/27, B/28 to B/39, B/40 to B/48, B/49 to B/56, B/68 to B/78 and B/79 to B/90 (in all admeasuring 15019.43 sqm. with construction of 5843 sqm.) situated on survey nos. 102 and 112/2, Block no. 93 of Village Mota Borasara, Sub district Mangrol, District Surat, with effect from date of sale in favour of the Petitioners; (a)(1) the Hon'ble Court may be pleased to issue an appropriate writ, order or direction to declare that Bank of Baroda had first charge over the Land which would override statutory charge under Gujarat Value Added Tax Act, 2003 and that the authorities under the Gujarat Valued Added Tax Act, 2003 cannot enforce charge over the Land to recover dues of Kabra Plastics Limited and/or Gujarat Poly Plast Ltd. (a)(2) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by the respondent no. 6-Bank under the provisions of the Act and the Rules, being parcel of the 63 industrial plots in an auction being plot numbers B/17 to B/27, B/28 to B/39, B/40 to B/48, B/49 to B/56, B/68 to B/78 and B/ 79 to B/90 in all admeasuring 15019.43 sq.mtrs with construction of 5843 sq.mtrs. situated on survey nos. 102 and 112/2, Block no. 93 of Village Mota Borasara, Sub district Mangrol, District Surat. 5.2. It is the case of the petitioner that the land in question was owned by one Binodkumar Ramprasad Kabra who mortgaged the same in favour of the consortium of Banks including respondent no. 6-Bank of Baroda and IDBI Limited for borrowing facilities granted to M/S. Kabra Plastics Limited. The Kabra Plastics Limited defaulted in repayment of finance advanced to it by the consortium of Banks and therefore land was put to auction after issuance of notice under the Rules to realise the dues of the secured creditors. 5.3. The petitioner was a successful bidder in the auction conducted on 16.11.2021 at an offer price of Rs. 7, 21, 00, 000/- which was accepted by the Bank of Baroda by letter dated 17.11.2021. The petitioner also deposited the entire sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in view of the decision of this Court in case of Kalupur Commercial Co-Operative Bank Ltd. Vs. State of Gujarat in Special Civil Application no. 17891 of 2018 rendered on 23.09.2019, the issue is no more resintegra because in view of Section 26A of the Securitisation Act, the respondent no. 6-Bank shall have priority of charge over the statutory dues of the Sales Tax/ VAT Department. 6.1. It was submitted that Chapter IVA comprising provisions of Section 26B to 26E are brought on statute by the Act no. 44 of 2016 with effect from 24.01.2020. It was therefore submitted that, as held by the Hon ble Division Bench of this Court, the subsisting of the charge created by the Sales Tax/VAT Department is required to be quashed and set aside in view of the applicability of Section 26E of the Securitisation Act, as respondent no. 6-Bank would have first charge over the properties mortgaged by the Kabra Plastics Ltd. 6.2. Learned advocate Ms. Jani thereafter referred to the decision of decision of Kalupur Commercial Co-Operative Bank Ltd. (Supra), wherein it is held as under: 7. Having heard the learned counsel appearing for the parties and having gone through the materials on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s 2nd Report in which specific reference was made to the provisions relating to mortgages under the Transfer of Property Act. 113. In an apparent bid to overcome the likely difficulty faced by the secured creditor which may include a bank or a financial institution, Parliament incorporated the non obstante clause in Section 13 and gave primacy to the right of secured creditor vis a vis other mortgagees who could exercise rights under Sections 69 or 69A of the Transfer of Property Act. However, this primacy has not been extended to other provisions like Section 38C of the Bombay Act and Section 26B of the Kerala Act by which first charge has been created in favour of the State over the property of the dealer or any person liable to pay the dues of sales tax, etc. Subsection (7) of Section 13 which envisages application of the money received by the secured creditor by adopting any of the measures specified under sub-section (4) merely regulates distribution of money received by the secured creditor. It does not create first charge in favour of the secured creditor. 116. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 30 of the Gift- Tax Act, and Section 529A of the Companies Act, 1956 would have been incorporated in the DRT Act and Securitisation Act. 130. Undisputedly, the two enactments do not contain provision similar to Workmen's Compensation Act, etc. In the absence of any specific provision to that effect, it is not possible to read any conflict or inconsistency or overlapping between the provisions of the DRT Act and Securitisation Act on the one hand and Section 38C of the Bombay Act and Section 26B of the Kerala Act on the other and the non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act cannot be invoked for declaring that the first charge created under the State legislation will not operate qua or affect the proceedings initiated by banks, financial institutions and other secured creditors for recovery of their dues or enforcement of security interest, as the case may be. 131. The Court could have given effect to the non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act vis a vis Section 38C of the Bombay Act and Section 26B of the Kerala Act and similar other State legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State respectively under Entries I and II of the Schedule and not of the Concurrent List. The amendment made by the Parliament is to give priority to the secured creditors vis-a-vis the State dues without speaking about the first charge. This aspect was duly considered by the Supreme Court in the case of Central Bank of India (supra). The amended provision, i.e. Section 26E of the SARFAESI Act and Section 31B of the RDB Act, would have been different as indicated by the Apex Court in the case of Central Bank of India (supra). 35. While it is true that the Bank has taken over the possession of the assets of the defaulter under the SARFAESI Act and not under the RDB Act, Section 31B of the RDB Act, being a substantive provision giving priority to the secured creditors , the same will be applicable irrespective of the procedure through which the recovery is sought to be made. This is particularly because Section 2(la) of the RDB Act defines the phrase secured creditors to have the same meaning as assigned to it under the SARFAESI Act. Moreover, Section 37 of the SARFAESI Act clearly provides that the provisions of the SARFAESI Act shall be in addition to, and not in derogation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) 43 STC 4 : AIR 1979 SC 1588. 6.3. Thereafter learned advocate Ms. Jani referred to the Full Bench decision of the Hon able Bombay High Court in case of Jalgaon Janta Sahkari Bank Ltd. And Anr. Vs. Joint Commissioner of Sales Tax and Anr. reported in (2022) SCC Online Bombay 1767 (Larger Bench). 6.4. It was pointed out that the Full Bench of the Hon ble Bombay High Court has framed following substantial questions of law for consideration: 44. Keeping in view the rival submissions, we have considered it appropriate to formulate the following substantial questions of law for answers: a. Having regard to the statutory provisions under consideration, does a secured creditor (as defined in the SARFAESI Act and the RDDB Act) have a prior right over the relevant department of the Government [under the BST Act/MVAT Act/MGST Act] to appropriate the amount realized by the sale of a secured asset? b. Whether, despite section 26E in the SARFAESI Act or section 31B of the RDDB Act being attracted in a given case, dues accruing to a department of the Government ought to be repaid first by reason of 'first charge' created over any property by operation of law (viz. the legislation in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e secured asset, for sale, is under a duty to notify, inter alia, the details of the encumbrances (in respect of such property that is proposed to be sold) which are known to the secured creditor as well as to require the purchaser to deposit money to discharge the encumbrances. 159. The Supreme Court in its decision in AI Champdany Industries Ltd. (supra) after considering the definition of 'encumbrance' in several law dictionaries, held that an 'encumbrance' must be capable of being found out either on inspection of the land or the office of the Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance, thus must be a charge on the property. If by reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance . 160. Till 24th January 2020, it may not have been possible for a secured creditor to know precisely all encumbrances in respect of the immovable property. With the insertion of section 26B in the SARFAESI Act read with the 2011 Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver there is basis , the petitioners cannot be made liable to pay any amount pursuant to the charge created by the Sales Tax/ VAT Department for recovery of the outstanding dues of the defaulter company. 6.7. It was submitted that the Full Bench of the Bombay High Court has answered questions a to c as per the decision of this Court in case of Kalupur Commercial Co-Operative Bank Ltd.(Supra) and so far as the observations of the Hon ble Bombay High Court with regard to questions d , e and f are concerned, while considering the amendment of Section 31B of the Recovery of Debt Act and Bankruptcy Act, 1993 (for short RDB Act ) which has also been brought on statute by the Act no. 44 of 2016 with effect from 1st September, 2016 by holding that whether the Financial Institution can get the benefit of Section 26E in absence of the registration of charge with the Central Registry for enforcing the security interest having a priority of the interest and simultaneously can also avail the priority of its charge as per the provision of Section 31B of the RDB Act is concerned, it was submitted that the Full Bench of the Hon ble Bombay High Court has answered this question in negative in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of the debt due and payable to claim priority of charge over statutory dues of the respondent Sales Tax/ VAT Department as per the provision of Section 31B of the RDB Act. 6.12. Learned advocate Ms. Jani submitted that in the facts of the case, the auction notice was issued by the Bank on 31.10.2021 and auction was held on 16.11.2021 and bid was accepted on 17.11.2021 whereas notice under Section 13(2) of the Securitisation Act was issued in the year 2017 prior to the charge mutated in the revenue record by the respondent Sales Tax/ VAT Department. It was also pointed out that the mortgage over the land in question was created in the year 06.03.2010 which was renewed in the year 2015. 6.13. It was therefore submitted that the charge created by the Secured Creditor respondent no. 6- Bank of Baroda was much prior in point of time than the charge created by the respondent Sales Tax/ VAT Department. It was submitted that irrespective of Section 26E, a secured creditor shall have priority of the charge over the land in question in view of the prior registration of the charge. It was also pointed out from the affidavit-inreply filed on behalf of the respondent Sales Tax/ VAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which provides that the tax to be first charged on the property of a dealer or any other person on account of tax interest and penalty payable. It was further submitted that the Division Bench of the Bombay High Court in case of Medineutrina Pvt. Ltd (company), while considering the aspect, the provisions of Section 37(1) of the Maharashtra VAT Act, 2002, vis-a-vis the auction purchaser of the property mortgaged with the secured creditor under the provisions of Securitisation Act and more particularly Section 26E has issued following directions for the secured creditors to take precautions for the sale of the mortgaged property (secured assets) under the provisions of Securitisation Act read with Securitisation Rules: 51. The secured creditor under the SARFAESI Act, therefore must in all cases ensure: (a) that the property offered as a security interest is free from any encumbrance whatsoever, at the time when it is so offered initially, to avail financial credit by the owner/s; (b) in all such cases, a titleverification certificate, by a lawyer, at the penalty of cancellation of his license to practice, in case such certificate is found to be false, should be a must, which certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re liable to pay outstanding dues of the Sales Tax/ VAT Department in view of the charge created prior in point of time, i.e. in the year 2018, as the auction took place in the year 2021. 7.2. It was submitted that the provisionof Section 26E of the Act has come into effect from 24.01.2020, whereas respondent Sales Tax Department has created charge in the year 2018 and as such as per the provisions of Section 48 of the VAT Act, the respondent shall have priority of the charge over the land in question and not respondent no. 6-Bank. 7.3. Reliance was also placed on the decision of the Hon ble Supreme Court in case of State Tax Officer Vs. Rainbow Papers Ltd. reported in (2023) 9 SCC 545, wherein the Apex Court after considering the provisions of Sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 (for short the IBC ) read with Regulation 12 as existing prior to 04.07.2018 and Regulations 10 and 14 of Regulations 2016, has analysed the provisions of the IBC vis-a-vis the provisions of Section 48 of the GVAT Act as under: 27. Mr. Tushar Mehta, learned Solicitor General of India appearing on behalf of the Appellant with Mr. K.M. Nataraj, Additional Solicitor General of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of Section 48 of GVAT Act will have an overriding effect over the provisions of the IBC Act and therefore, it was submitted that when the provisions of Section 48, which are more general in nature, the decision of the Hon ble Apex court would be squarely applicable in the facts of the case. It was therefore submitted that as per the provisions of Section 48 of the VAT Act, the petitioners would be liable to discharge outstanding dues of the defaulter company as the charges would subsist on the land in question, even after the same is purchased by the petitioners in the auction held by the respondent no. 6-Bank. 7.5. It was further submitted that on perusal of Section 48 of the VAT Act in view of the subsequent decision of the Apex Court and Full Bench decision of the Bombay High Court in case of Rainbow Papers Ltd. (Supra), the decision of this Court in case of Kalupur Commercial CoOperative Bank Ltd.(Supra) would require a relook and when the statutory charge is created for recovery of the outstanding dues of the defaulter company on the properties under the provisions of Section 48 of the VAT Act, the same would have precedence over the charge of the respondent no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Such creditors would be entitled to seek 'priority' in terms of section 26E only after the security interest is registered and other provisions of the SARFAESI Act are complied with. Provisions in Chapter IV-A cannot be construed in a manner so as to disturb, impair or divest the State of its accrued rights. Sections 26D and 26E of the SARFAESI Act no doubt begin with non-obstante clauses. However, such non- obstante clauses would override any law for the time being in force evincing a result contrary to or inconsistent with sections 26D and section 26E but may not be so read so as to override and nullify an exercise of right by the relevant department of the State under any other law for the time being in force, and action taken in pursuance thereof, leading to accrual of some legal interest or benefit. 7.9. Learned AGP Mr. Dave further submitted that as per the provisions of Section 152 of the Bombay Land Revenue Code, the respondent State has complied with all the formalities as provided in Rule 118 of the Bombay Land Revenue Rules by issuing the notices in the prescribed format for recovery of the outstanding dues as arrears of land revenue as provided under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s including debts on account of workman's dues for a period of 24 months preceding the liquidation commencement date. 57. As observed above, the State isa secured creditor under the GVAT Act. Section 3(30) of the IBC defines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority. 27. In view of the above stated position, we are of the opinion that the well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review. The learned Counsels for the Review Petitioners have failed to make out any mistake or error apparent on the face of record in the impugned judgment and have failed to bring the case within the parameters laid down by this Court in various decision for reviewing the impugned judgment. Since we are not inclined to entertain these Review Petitions, we do not propose to deal with the other submissions made by the learned Counsels for the parties on merits. 28. In that view of the matter, all the Review Petitions are dismissed. 7.12. Referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysed in detail the provisions of the Securitisation Act as well as provisions of the VAT Act and it has been held that once the property is sold by secured creditor under the provision of Securitisation Act and Securitisation Rules, the amount realized will have to be appropriated towards the satisfaction of the charge of the secured creditor and not the charge as per operation of law under Section 48 of the VAT Act. 9. It was further submitted that reliance placed by the learned AGP on the decision of this Court in case of Shree Radhekrushna Ginning And Pressing Pvt. Ltd. Through Director Yash Pareshbhai Khachar Vs. State of Gujarat in Special Civil Application no. 5413 of 2022 rendered on 29.03.2022 would not be applicable in the facts of the case. As in the facts of said case, the Court has considered the issue of continuing of charge during the pendency of the proceedings before the appellate authority. It was pointed out that the issue before the Court was with regard to as to whether charge would extinguish on the stay being granted by appellate authority or not. It was further submitted that once the secured creditors while exercising the powers conferred upon it under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [asset reconstruction company] from 3 [qualified buyers] by issue of security receipts representing undivided interest in such financial assets or otherwise; (zc) secured asset means the property on which security interest is created; (zd) secured creditor means (i) any bank or financial institution or any consortium or group of banks or financial institutions holding any right, title or interest upon any tangible asset or intangible asset as specified in clause (l); (ii) debenture trustee appointed by any bank or financial institution; or (iii) an asset reconstruction company whether acting as such or managing a trust set up by such asset reconstruction company for the securitisation or reconstruction, as the case may be; or (iv) debenture trustee registered with [the Board and appointed] for secured debt securities; or (v) any other trustee holding securities on behalf of a bank or financial institution, in whose favour security interest is created by any borrower for due repayment of any financial assistance.] (ze) secured debt means a debt which is secured by any security interest; (zf) security interest means right, title or interest of any kind, other than those specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;] (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice inwriting, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. 26B. Registration by secured creditors and other creditors. (1) The Central Government may by notification, extend the provisions of Chapter IV relating to Central Registry to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses and other rates payable to the Central Government or State Government or local authority. Explanation. For the purposes of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower, priority to secured creditors in payment of debt shall be subject to the provisions of that Code.] 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. 37. Application of other laws not barred. The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992(15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force. The Securitization Rules; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insure them, if necessary, till they are sold or otherwise disposed of. (5) Before effecting sale of the immovable property referred to in sub-rule (1) of rule 9, the authorized officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:- (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; or (b) by inviting tenders from the public; (c) by holding public auction including through e-auction mode; or [Substituted by Notification no. G.S.R. 1046 (E), dated 3.11.2016 (w.e.f. 20.9.2002).] (d) by private treaty. (6) the authorized officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under subrule (5): [Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in the Form given in Appendix IV-A to be published in two leading newspapers includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount offered by sale price is less than the reserve price, specified under sub-rule (5) of [rule 8] [Substituted by Notification no. G.S.R. 1046 (E), dated 3.11.2016 (w.e.f. 20.9.2002).]: Provided further that if the authorized officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price. (3) On every sale of immovable property, the purchaser shall immediately, i.e. on the same day or not later than next working day, as the case may be, pay a deposit of twenty five per cent. of the amount of the sale price, which is inclusive of earnest money deposited, if any, to the authorized officer conducting the sale and in default of such deposit, the property shall be sold again;] [Substituted by Notification no. G.S.R. 1046 (E), dated 3.11.2016 (w.e.f. 20.9.2002). (4) The balance amount of purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period [as may be agreed upon in writing between the purchaser and the secured creditor, in any case not exceeding three months] [S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y works for gain; or (b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides, or carries on business, or personally works for gain; or (c) the cause of action, wholly or in part, arises: [Provided that the bank or financial institution may, with the permission of the Debts Recovery Tribunal, on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004 (30 of 2004) for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), if no such action had been taken earlier under that Act: Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application: Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear accrues. The [State Government] may from time to time frame rules for the issue of such notices, and [**] shall fix the costs recoverable from the defaulter as an arrear of revenue, and direct by what officer such notices shall be issued. The VAT Act: Special powers of tax authorities for recovery of tax as arrears of land 46. (1) For the purpose of effecting recovery of the amount of tax, penalty or interest due from any dealer or other person by or under the provisions of this Act or under any earlier law, as arrears of land revenue (i) the Commissioner, the Special Commissioner, Additional Commissioner and the Joint Commissioners shall have and exercise all the powers and perform all the duties of the Collector under the Bombay Land Revenue Code, 1879 (ii) the Deputy Commissioners and Assistant Commissioners shall have and exercise all the powers (except the powers of arrest and confinement of a defaulter in a civil jail) and perform all the duties the Assistant Collector or Deputy Collector under the said Code. (iii) the Commercial Tax Officers shall have and exercise all the powers (except the powers of arrest and confinement of a defaulter in a civil jail) and perform all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng: (i) any amount due to the Central Government and the State Government including the amount to be received on account of the Consolidated Fund of India and the Consolidated Fund of a State, if any, in respect of the whole or any part of the period of two years preceding the liquidation commencement date; (ii) debts owed to a secured creditor for any amount unpaid following the enforcement of security interest; (f) any remaining debts and dues; (g) preference shareholders, if any; and (h) equity shareholders or partners, as the case may be. The Transfer of Property Act, 1882 100. Charges. Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained [which apply to a simple mortgage shall, so far as may be, apply to such charge]. Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, [and, save as otherwise expressly provided by any law for the time being in force, no ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reto. 13. This Court in case of Kalupur Commercial Cooperative Bank(Supra) has held as under: 14. We may also quote the statement of objects and reasons specified in The Recovery of Debts Due to Banks Financial Institutions Act, 1993 The same read thus; THE RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 Statement of Objects and Reasons Banks and financial institutions at present experience considerable difficulties in recovering loans and enforcement of securities charged with them. The existing procedure for recovery of debts due to the banks and financial institutions has blocked a significant portion of their funds in unproductive assets, the value of which deteriorates with the passage of time. The Committee on the Financial System headed by Shri M. Narasimham has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms. An urgent need was, therefore, felt to work out a suitable mechanism through which the dues to the banks and financial institutions could be realized without delay. In 1981, a Committee under the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the case of Central Bank of India (supra) are quoted hereunder for ready reference. 111. However, what is most significant to be noted is that there is no provision in either of these enactments by which first charge has been created in favour of banks, financial institutions or secured creditors qua the property of the borrower. 112. Under Section 13(1) of the Securitisation Act, limited primacy has been given to the right of a secured creditor to enforce security interest vis-`-vis Section 69 or Section 69A of the Transfer of Property Act. In terms of that subsection, secured creditor can enforce security interest without intervention of the Court or Tribunal and if the borrower has created any mortgage of the secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a receiver of the income of the mortgaged property or any part thereof in a manner which may defeat the right of the secured creditor to enforce security interest. This provision was enacted in the backdrop of Chapter VIII of Narasimham Committee's 2nd Report in which specific reference was made to the provisions relating to mortgages under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ensured that notwithstanding series of judicial pronouncements, dues of banks, financial institutions and other secured creditors should have priority over the State's statutory first charge in the matter of recovery of the dues of sales tax, etc. However, the fact of the matter is that no such provision has been incorporated in either of these enactments despite conferment of extraordinary power upon the secured creditors to take possession and dispose of the secured assets without the intervention of the Court or Tribunal. The reason for this omission appears to be that the new legal regime envisages transfer of secured assets to private companies. 129. If Parliament intended to give priority to the dues of banks, financial institutions and other secured creditors over the first charge created under State legislations then provisions similar to those contained in Section 14A of the Workmen's Compensation Act, 1923, Section 11(2) of the EPF Act, Section 74(1) of the Estate Duty Act, 1953, Section 25(2) of the Mines and Minerals (Development and Regulation) Act, 1957, Section 30 of the Gift- Tax Act, and Section 529A of the Companies Act, 1956 would have been incorpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial pronouncements, the dues of Banks, Financial Institutions and other secured creditors should have priority over the State's statutory first charge in the matter of recovery of the dues of sales tax etc. The Supreme Court proceeded to observe that the fact of the matter was that no such provision had been incorporated in either of those enactments despite conferment of extraordinary power upon the secured creditors to take possession and dispose of the secured assets without the intervention of the Court or Tribunal. 17. In our prima facie opinion, such observations probably might have weighed with the Parliament which ultimately might have led to the introduction of Section 31B in the RDB Act, 1993 and 26E in the SARFAESI Act, 2002. 18. Section 31B of the RDB Act also starts with a non- obstante clause 'notwithstanding anything contained in any other law for the time being in force'. 19 Section 26E of the SARFAESI Act also starts with a non-obstante clause 'notwithstanding anything contained in any other law for the time being in force'. 29. The principles of law discernible from the decision of the Supreme Court in the case of Solidaire India Ltd. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be made. This is particularly because Section 2(la) of the RDB Act defines the phrase secured creditors to have the same meaning as assigned to it under the SARFAESI Act. Moreover, Section 37 of the SARFAESI Act clearly provides that the provisions of the SARFAESI Act shall be in addition to, and not in derogation of inter-alia the RDB Act. As such, the SARFAESI Act was enacted only with the intention of allowing faster recovery of debts to the secured creditors without intervention of the court. This is apparent from the Statement of Objects and Reasons of the SARFAESI Act. Thus, an interpretation that, while the secured creditors will have priority in case they proceed under the RDB Act they will not have such priority if they proceed under the SARFAESI Act, will lead to an absurd situation and, in fact, would frustrate the object of the SARFAESI Act which is to enable fast recovery to the secured creditors. 39. The Full Bench of the Madras High Court, in the case of The Assistant Commissioner (CT), Anna Salai-III Assessment Circle v. The Indian Overseas Bank and others, reported in [2017] 99 VST 222 (Mad) [FB]; [2017] 202 Comp Cas 226 (Mad) [FB]; AIR 2017 Mad 67 [FB], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of debt over the mortgagee or pledgee of goods or secured creditors. The law was further settled by the Supreme Court in Punjab National Bank Vs. Union of India [(2022) 7 SCC 260] on this score. 5.3 In view of above position of law, in other words, the charge in respect of the property in question created for sales tax dues is of no avail and has no efficacy in law. The property in question was sold by the bank which was a secured creditor, to enforce its secured debt under the SARFAESI Act, of which the petitioners were successful auction purchaser. They were issued sale certificate which was registered to finally become absolute owner of the property. In exercising their capacity as owners, they executed further sale deed dated 15.2.2021 which was registered with the office of Sub Registrar at no. 1169 on 16.2.2021, however the Sub-Registrar refused to return the sale registered sale deed in view of the order of the respondent no. 5 Sales Tax Authority on the ground that it had created charge over the properties for the sales tax dues. 6. Considering the facts involved and the propositions of law highlighted, respondent no. 3 Sub Registrar was wholly unjustified in passing or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law as explained is very clear. In no uncertain terms, the Supreme Court held that the appellant, i.e. the bank, was right in submitting that on the date on which the State of Karnataka proceeded to attach and sell the property of the partners of the firm mortgaged with the bank, it could not have appropriated the sale proceeds to the sales-tax arrears payable by the firm, thereby defeating the bank's security. In taking such view, the Supreme Court relied on its earlier decision in the case of CST vs. Radhakishan, (1979) 43 STC 4 : AIR 1979 SC 1588. 48. In the case of Stock Exchange, Bombay v. V.S.Kandalgaonkar, reported in (2014)51 taxmann.com 246 (SC), it was held by the Bombay High Court that, By virtue of lien on securities under rule 43 of Bombay Stock Exchange Rules, BSE being secured creditor of defaulting member would have priority over dues of Income - tax department. While dealing with the tax recovery under Section 226 of the Income- tax Act, 1961, read with Sections 8 and 9 of the Securities Contracts (Regulation) Act, 1956, it was held by the Apex Court that collection and recovery of tax has to be based on proper appreciation of facts of the case. While decidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, it is clear that whether the lien under Rule 43 is a statutory lien or is a lien arising out of agreement does not make much of a difference as the Stock Exchange, being a secured creditor, would have priority over Government dues. 49. The two decisions referred to above, one of the Supreme Court and another of the Bombay High Court, as such may not be helpful to the Bank because the principal issue in the case on hand is with regard to the statutory charge which is created by the State enactment. The Bombay High Court was dealing with a matter under the Income Tax AcJAOt and under the Income Tax Act, there is no provision analogous to Section 48 of the VAT Act which creates a statutory charge. 50. There is one another important argument of Mr. Sheth which is quite appealing and we are at one with Mr. Sheth on the same. Indisputably, the Bank put forward its claim over the secured assets of the Bank for the first time on 01.10.2016 and that too by way of provisional attachment of the properties under Section 45 of the VAT Act, keeping in mind the dues that may be determined in future. It is not in dispute that there were no crystallized dues as on 01.10.2016 and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny transfer of property of the dealer, such transfer would not be a void transfer. Therefore, the condition precedent is that the tax should become due and such tax which has become due shall be payable by a dealer. Once this part is over, then Section 48 of the VAT Act would come into play. 17. The full Bench of the Bombay High Court has framed following issues for consideration: 44. Keeping in view the rival submissions, we have considered it appropriate to formulate the following substantial questions of law for answers: a. Having regard to the statutory provisions under consideration, does a secured creditor (as defined in the SARFAESI Act and the RDDB Act) have a prior right over the relevant department of the Government [under the BST Act/MVAT Act/MGST Act] to appropriate the amount realized by the sale of a secured asset? b. Whether, despite section 26E in the SARFAESI Act or section 31B of the RDDB Act being attracted in a given case, dues accruing to a department of the Government ought to be repaid first by reason of 'first charge' created over any property by operation of law (viz. the legislation in force in Maharashtra) giving such dues precedence over the dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such dues precedence over the dues of a secured creditor? c. Are the provisions, inter alia, according 'priority' in payment of dues to a secured creditor for enforcing its 1-WP-2935-2018 Connected-FD security interest under the provisions of the SARFAESI Act prospective? 19. So far as issue A is concerned, after considering the position of law as per the decision of the Hon ble Apex Court in case of Central Bank of India Vs State of Kerala reported in (2009) 4 SCC 94 and the decision of the Rajasthan High Court in case of PNG Engineers and Contractors Private Limited reported in 2017 SCC Online Rajasthan 4319, it is held as under: 52. The dicta in State Bank of India vs. State of Kerala (supra) is clear. It supports the contention that in view of section 31B of the RDDB Act and section 26E of the SARFAESI Act, first charge in favour of the banks/financial institutions is created for recovery/realization of their dues in priority to the dues of a department of the Government. 53. A Division Bench of the Gujarat High Court, in its decision reported in (2019) SCC Online Guj 1892 (Kalupur Commercial Co-operative Bank Ltd. vs. State of Gujarat) considered an issue with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31B thereof having accorded first priority in favour of the secured creditor over and above the Government dues, including revenues, taxes, etc. and also because section 31B of the RDDB Act is not restricted to any sale conducted under the provisions of such legislations only and it would operate in respect of sale conducted under any other mechanism, including provisions of the SARFAESI Act, it was immaterial whether section 26E of the SARFAESI Act had not been brought into force. 57. Reliance was placed by the petitioner on the decisions in Assistant Commissioner (CT) (supra), G.M.G. Engineers and Contractor Pvt. Ltd. (supra), Bank of Baroda (supra), and Kalupur Commercial Cooperative Bank Ltd. (supra). 58. On the contrary, the respondents 1 and 2 contended that since section 26E of the SARFAESI Act had not been brought into force and notwithstanding section 31B of the RDDB Act being in force, for the purposes of action taken under the SARFAESI Act, the charge created by section 37 of the MVAT Act shall prevail. 59. In paragraph 12, the Court observed as follows: 12. A perusal of Section 37 of MVAT Act, 2002 reveals that though it commences with a non-obstante clause, but it reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench, an argument without substance . 20. From the above observation of the Full Bench of the Bombay High Court, it was sought to be canvassed before us that the decision of this Court in case of Kalupur Commercial Cooperative Bank (Supra) in relation to the analysis of section 26E of the SARFAESI Act and Section 31B of the RDB Act is required to be reconsidered in the circumstances and once the secured creditor exercised to recover its outstanding dues under the provisions of SARFAESI Act by auction, then the question of invoking Section 31B of the RBD Act would not arise in absence of any determination of any debt due and payable by the intervention of the Court. We would like to note that this Court has not considered the applicability of Section 31B, irrespective of determination of the amount due and payable, but reference to the Section 31B of the RBD Act is made as both Sections 31B and Section 26E of the RDB Act and 26E of the SARFAESI Act are brought on statute by the Act no. 44 of 2016 and both the Sections provide for priority of the charge of the secured creditor over all other dues, including the Government dues. This Court has not considered the applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the debts due (in section 26E). (c) section 31B of the RDDB Act being a substantive provision, it cannot be invoked by a secured creditor faced with the disability posed by section 26E of the SARFAESI Act; and (d) without recourse having been taken to the procedure envisaged in the RDDB Act for recovery of its dues and without there being a determination of its claim by the DRT to the effect that any sum due from the borrower is payable to it, a secured creditor is not entitled to invoke the provisions of section 31B. Answer to Question (e) 131. In our considered opinion, on the face of the express provisions in sections 26D and 26E of the SARFAESI Act and in the absence of any discussion on the object of introduction of Chapter IV-A of the SARFAESI Act by the Division Bench in ASREC (India) Ltd. (supra), we are constrained to hold that a law has been declared which runs clearly contrary to the statutory mandate and, therefore, paragraph 21 of such decision does not represent the correct position of law. 132. The other Division Bench in State Bank of India vs. State of Maharashtra (supra) may not have considered sections 26D and 26E of the SARFAESI Act in such great depth in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Order XXI Rules 54 and 66 of the CPC. It is mandatory for the court executing the decree, to comply with the following stages before such property is sold in execution of a particular decree: (a) attachment of the immovable property; (b) proclamation of sale by public auction; (c) sale by public auction. At each stage of the execution of the decree, when a property is sold, it is mandatory that notice shall be served upon the person whose property is being sold in execution of the decree, and any property which is sold, without notice to the person whose property is being sold, is a nullity and all actions pursuant thereto are liable to be struck down/quashed. However, the proceedings before us do not concern execution of any decree. 153. In these proceedings we are as much concerned with proclamation itself as much with attachment. Insofar as recovery pursuant to the MLR Code is concerned, not only the provisions contained therein but also the provisions contained in the 1967 Rules are to be complied with. Simply ordering an attachment is not enough; a proclamation has to be issued in the prescribed form and such proclamation must be made public by beating of drum and such othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the secured asset, and no other property of the defaulting borrower, the concern of the department need not necessarily be confined only to the secured asset but could well spill over and any other asset of the defaulter in payment of State's dues could be put up for sale to realize such dues in terms of the MLR Code and the 1967 Rules. 156. The procedure for 'sale of an immovable secured asset' and 'time of sale, issue of sale certificate and delivery of possession', consequent upon measures taken by a secured creditor under sub-section (4) of section 13 of the SARFAESI 1WP-2935-2018 Connected-FD Act, have been laid down in rules 8 and 9, respectively, of the 2002 Rules. 157. Provisions contained in subrule (7) of rule 8 of the 2002 Rules read thus: (7) Every notice of sale shall be affixed on the conspicuous part of the immovable property and the authorized officer shall upload the detailed terms and conditions of the sale, on the web-site of the secured creditor, which shall include, (a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance, thus must be a charge on the property. If by 1-WP-2935-2018 Connected-FD reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance . 160. Till 24th January 2020, it may not have been possible for a secured creditor to know precisely all encumbrances in respect of the immovable property. With the insertion of section 26B in the SARFAESI Act read with the 2011 Rules, a secured creditor is expected to know some of such encumbrances if at all compliance of section 26B is resorted to by the Central Government, any State Government or a local authority, to whom money is owed by the defaulter being an owner of the property. Such a statutory mechanism for knowing the encumbrances in respect of the immovable property being put up for sale by auction not being available before 24th January 2020, the authorized officers were found to play it safe by inserting the as is where is, whatever there is basis clause in the sale advertisement. Once such clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also include any subsisting charge over the property which is put for auction sale. In absence of such disclosure by the secured creditor made in the auction sale notice, as a part of terms and conditions of the sale and only mentioning as is where is, whatever basis is not sufficient so as to enable the participants in the auction sale to put to notice about the charge subsisting on the property which is put to auction sale. 27. In such circumstances, the auction purchaser who does not have a constructive notice of any charge over the property cannot be made liable to make the payment, assuming for a while that the charge subsist on the property. 28. In view of the above analysis made by the Full Bench of the Bombay High Court, as stated in para 161 extracted herein above, the auction purchaser shall not be duty bound to make any payment, even if the charge subsist over the property, except what is stated in the sale agreement or sale deed executed between the parties. 29. In the facts of the case, it is also not in dispute that the conditions stated in the sale deed only stipulates with regard to the liability of the auction purchaser for payment of all rents, taxes, assessment r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount on sale of the property by realizing its charge created over the property. 32. In such circumstances, the question, therefore would arise as to whether the respondent State would be entitled to recover any amount from the Bank, having the priority over the charge for sale consideration which was realized on the sale of the property, as the property once sold, then charge would be shifted to the sale consideration realized and therefore it would be between the respondent State and the secured creditor as to who will have first right to recover such sale consideration. It may happen that even though the secured creditor may have the first charge over the property and respondent State might have sold the property then in that circumstances also the question would arise whether the secured creditor would be entitled to recover such sale consideration from the State Authority by virtue of first charge over the property. 33. In such circumstances, as held by this Court in case of Kalupur Commercial Cooperative Bank (Supra) and as per the decision of the Full Bench of the Bombay High Court, the secured creditor would have the first charge in view of the priority of the charge as pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear definition of secured creditor under the IBC. 29. As argued by the learned Solicitor General, the term Secured Creditor as defined under the IBC is comprehensive and wide enough to cover all types of security interests namely, the right, title, interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction, which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person. xxxxx 53. In other words, if a company is unable to pay its debts, which should include its statutory dues to the Government and/or other authorities and there is no plan which contemplates dissipation of those debts in a phased manner, uniform proportional reduction, the company would necessarily have to be liquidated and its assets sold and distributed in the manner stipulated in Section 53 of the IBC. 54. In our considered view, the Committee of Creditors, which might include financial institutions and other financial creditors, cannot secure their own dues at the cost of statutory dues owed to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 52. PVVNL had relied upon the decision Rainbow Papers (supra). In that case, the issue involved was interpretation of Section 48 of the Gujarat Value Added Tax Act, 2003 which enacted that any amount payable towards tax or penalty by any person would constitute a first charge on the property of such dealer or person. The corporate debtor had defaulted in payment of its tax dues and recovery proceedings had been initiated. In the meanwhile, insolvency proceedings had commenced. During the resolution process, the State tax authorities claimed that the dues payable had to be accrued previously and relied upon Section 48, in addition to Section 53 of the IBC. The State contended that the non-obstante clause in the state enactment and the non-obstante clause in the IBC operated at different fields, and the State had to be treated as a secured creditor by virtue of Section 48 of the state act. This was rejected by the NCLT and the NCLAT. However, this court took note of Sections 30 and 31 of the IBC and certain other provisions and held that NCLT had erred in its observations. It was held that: 56. Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the government on the other clearly signifies Parliament s intention to treat the latter differently - and in the present case, having lower priority. As noticed earlier, this intention is also evident from a reading of the preamble to the Act itself. 55. According to the principles of statutory interpretation, when an enactment uses two different expressions, they cannot be construed as having the same meaning. It was held in Member, Board of Revenue v. Anthony Paul Benthall that: When two words of different import are used in a statute, in two consecutive provisions, it would be difficult to maintain that they are used in the same sense This idea is reflected in a subsequent judgment in Brihan Mumbai Mahanagarpalika Anr. v. Willington Sports Club. 56. The views expressed by the present judgment finds support in the decision reported as Sundaresh Bhatt, Liquidator of ABG Shipyard v. Central Board of Indirect Taxes and Customs 38. In that case, Section 142A of the Customs Act 1962 was in issue authorities had submitted that dues payable to it were to be treated as first charge on the property of the assessee concerned. In the resolution process, it was argued that the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (supra) [refer also: Innoventive Industries (supra), CIT v. Monnet Ispat Energy Ltd., Ghanashyam Mishra Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., and Jagmohan Bajaj v. Shivam Fragrances Private Limited. 58. In view of the above discussion, itis held that the reliance on Rainbow Papers (supra) is of no avail to the appellant. In this court s view, that judgment has to be confined to the facts of that case alone. 36. From the above, it is clear that the Judgment in case of Rainbow Papers Ltd. (Supra) is confined to the facts of the said case only and therefore, it would not be required to relook the decision of the Kalupur Commercial Cooperative Bank (Supra) considering the decision of the Rainbow Papers Ltd. (Supra) of the Apex Court, as the facts of the present case are in the realm of the provisions of the RDB Act and SARFAESI Act, whereas the decision of the Apex Court in case of Rainbow Papers Ltd. (Supra) was in realm of IBC Code confined to the facts of the said case as observed in the subsequent decision of the Apex Court. 37. It is also pointed out by the learned AGP that the decision of the Rainbow Papers Ltd. (Supra) was considered in review, which is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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