9911796707
TMI Blog2024 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment Pleader Ms. Shrunjal Shah for the respondent No. 1. 2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : "(B) The Hon'ble Court in exercise of its powers under Article 226 of the Constitution of India be pleased to issue a writ in the nature of Mandamus or a direction or Order to the Respondent Authorities for quashing and setting aside the Order dated 10-05-2011 passed by the Commercial Tax Officer, Morbi and also direct the Respondents to withdraw charges and raise attachment levied by their office over the mortgaged property exclusively charged in favour of this Petitioner expeditiously and within a specific time in the interest of justice." 3. The brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the petitioner-Bank that petitioner-Bank issued the Notice dated 09.01.2023 under Section 13 (4) of the SARFAESI Act to the defaulter after which the Sale Notice dated 31.01.2023 was issued under the Security Interests (Enforcement) Rules, 2002 to the Borrower. 3.3. Thereafter, upon inquiry with the City Survey Officer, the Bank Officers came to know about the lien created upon property card of some of the plot numbers on the basis of order No. 4/Morbi/11-12/Ja.1757/58 dated 10.05.2011 and lease were also due in relation to the said property which was mentioned in the Encumbrance Certificate dated 03.03.2023. 3.4. Being aggrieved by inaction on part of the respondent No. 3-Commercial Tax Officer pursuant to the notice issued by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 48 of the SARFAESI Act was passed in the year 2011. 6. Considering the above submissions, it would be germane to refer to the decision of this Court in case of Partners of Siddheshwar Tax Fab & Ors versus State of Gujarat & Ors rendered in Special Civil Application No. 2527 of 2023 wherein, it is held as under : "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 decision and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no longer resintegra, wherein the Coordinate Bench of this Court has also referred to the decision of the Hon'ble Apex Court in case of Bank of Bihar Vs. State of Bihar reported in (1972) 3 SCC 196 which is followed in the decision of the Dena Bank (Supra) and the law laid down is that preferential right of the Crown to recover the debt over the creditors is limited to the class of unsecured creditors and the common law principles of of England equity or and the good conscience would not allow the Crown to have preferential right for recovery of debt over the mortgagee or pledge of goods of secured creditors. 39. In view of the above settle legal position, the charge in respect of the property in question created for sales tax dues or VAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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