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TMI Blog2024 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the property in question created for sales tax dues or VAT dues is of no availand has no efficacy in law in view of the provisions of SARFAESI Act and the RDB Act. The property in question was sold by respondent no.6-Bank under the provisions of SARFAESI Act and the petitioners were successful purchasers and the sale certificate is issued and sale deed is also executed by which the petitioners have become absolute owners of the property and therefore considering the existing position of law, the charge created by the respondent State over the property in question in the year 2018, cannot be sustained and is accordingly quashed and set aside.' In view of the above, the respondent No. 2 is directed to remove the charge over the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner Bank. 3. The brief facts of the case are as under : 3.1. The petitioner-Bank advanced loan to the respondent No. 3-Azad Impex Private Limited in the year 2015 by creating the charge over the immovable properties on execution of equitable mortgage by deposit of title deeds of the borrower. The respondent No. 3-borrower registered the charge with the Registrar of Companies and petitioner-Bank also registered all the mortgaged documents in the Central Registry as per Section 20 of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act ). 3.2. The respondent No. 3 thereafter defaulted in making repayment of the credit facilities. The petitioner-Bank cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the present petition is filed. 4.1. Learned advocate Ms. Himani Kini for the petitioner submitted that the petitioner is having the first charge over the property registered since 2015 and accordingly, the respondent No. 2 cannot have a priority or charge in view of the provisions of Section 26E of the SARFAESI Act. 4.2. Reliance was placed on the decision of this Court in case of Kalupur Commercial Cooperative Bank Limited versus State of Gujarat rendered in Special Civil Application No. 17891 of 2018 as well as the decision in case of Partners of Siddheshwar Tax Fab Ors versus State of Gujarat Ors rendered in Special Civil Application No. 2527 of 2023 rendered in 26th July, 2024 to submit that the respondent-Authorities be directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicability of provision of Section 26E of the SARFAESI Act as well as provisions of Section 31B of RDB Act vis- -vis Section 48 of the vat Act as analysed and discussed by this Court in Kalupur Commercial Cooperative Bank (Supra). 38. In view of the above analysis and facts, we would also like to refer to the subsequent decision of the Coordinate Bench in case of Odhavji Mohanbhai Gadhiya Vs. State of Gujarat (supra), wherein it is observed by this Court, that it is a settled legal position that VAT and Sales Tax dues has no precedence over the dues of the Bank for recovery of which the bank exercises powers under the SARFAESI Act and dues in nature of sales tax and VAT payable by the original owner cannot claim priority over the dues o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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