R.P. No.525/2021 in W.P.(C)530/2021, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943** **RP NO. 525 OF 2021** **AGAINST THE ORDER IN WP(C) 530/2021 OF HIGH COURT OF KERALA,** ## **ERNAKULAM** ## **REVIEW PETITIONERS/RESPONDENTS 1 TO 2 & ADDL.4TH RESPONDENT IN WPC:** - **1 THE DISTRICT REGISTRAR (GENERAL) ERNAKULAM, REGISTRAR OFFICE, ERNAKULAM HEAD POST OFFICE P.O, ERNAKULAM- 682 011** - **2 THE SUB REGISTRAR,ERNAKULAM REGISTRAR OFFICE, ERNAKULAM HEAD POST OFFICE P.O, ERNAKULAM- 682 011** - **3 THE COMMERCIAL TAX OFFICER 2ND CIRCLE, KALAMASSERY, 2ND FLOOR, NEW BLOCK, CIVIL STATION, THRIKKAKARA, ERNAKULAM DISTRICT-682030** **BY GOVERNMENT PLEADER SRI.JAFAR KHAN** ## **RESPONDENTS/PETITIONER AND 3RD RESPONDENT IN W.P.(C):** - **1 FARZANA KHATOON @ FARZANA PARVEZ, D/O.SEKH ROSHAN, 6 AHIRIPUR, 2ND LANE WARD NO.69 KOLKATA, BALLYGUNGE, WEST BENGAL-700019** - **2 M/S.INDIABULLS ASSET RECONSTRUCTION COMPANY LTD. REGISTERED OFFICE AT INDIABULLS FINANCE CENTER, TOWER 9 SENAPATI BAPAT MARG, ELPHIN STONE ROAD, MUMBAI-40013 REPRESENTED BY ITS AUTHORISED OFFICER.** **ADV.SRI.RETHEESH N.A-R1 ADV.PRESUN S.-R1** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 5.10.2021, THE COURT ON 15.11.2021, DELIVERED THE FOLLOWING:** R.P.No.525/2021 in W.P.(C)530/2021 2 ## **ORDER** Respondents 1, 2 and 4 in W.P. (C) No. 530 of 2021 have filed this Review Petition to review the interim order dated 16.04.2021 passed by this Court in the writ petition. The writ petition was filed by the auction purchaser of a property against the refusal of the Sub Registrar, Ernakulam to register Ext.P8 sale certificate. 2. The property covered by Ext.P8 sale certificate was mortgaged by the prior owner with M/s ING Vysya Bank Ltd., who had availed a loan from the said bank. Later, on 12.12.2014, the said loan facility along with the mortgaged property was taken over by M/s IndusInd Bank Ltd. Thereafter, the IndusInd Bank Ltd. assigned the said secured asset to the 3[rd] respondent, an asset reconstruction company and when the loan account became NPA, the said company took possession of the secured assets under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, for short) and put the property for sale in e- R.P.No.525/2021 in W.P.(C)530/2021 3 auction in exercise of the powers under Section 13 of the said Act. The writ petitioner participated in the e-auction held on 20.07.2020 and was the successful bidder and was issued with Ext.P3 sale certificate under Rule 9 (6) of the Security Interest (Enforcement) Rules, 2002. The sale certificate shows that there is Sales Tax attachment of Rs.81,29,156/over the property. Ext.P4 encumbrance certificate also shows this attachment. 3. When the writ petitioner approached the Sub Registrar for registration of the sale certificate after paying the stamp duty as fixed by the 1[st] respondent by Ext.P6 order, the Sub Registrar refused to register the document and returned the same by Ext. P9 order stating that there is an order of attachment No. E2 109/16,110/16,111/16/ST dated 18.02.2017 (Annexure A1) of the Special Tahsildar (RR), Kanayannur over the property. The writ petitioner filed Ext.P10 appeal before the District Registrar under Section 72 of the Kerala Registration Act, 1908 and the appeal was dismissed by Ext.P14 order stating that in view of R.P.No.525/2021 in W.P.(C)530/2021 4 the order of attachment for recovery of Sales Tax dues, clarification regarding the first charge is required and the writ petitioner has to obtain necessary orders from the Court. It is challenging the said orders that the writ petitioner has filed the above writ petition to accept Ext.P8 document for registration and to register the same. 4. When the writ petition came up for admission on 08.01.2021, the learned Government Pleader was asked to get instructions and the writ petition was posted after 2 weeks. The matter came up for further consideration on 05.02.2021 and the learned Government Pleader sought further time and the case was ordered to be listed on 01.03.2021. This Court also directed the petitioner to implead the assessing authority concerned. On 01.03.2021, this Court allowed I.A. No. 1 of 2021 for impleading and the Commercial Tax Officer was impleaded as additional 4[th] respondent in the writ petition. This Court also ordered notice on admission by speed post to the 3[rd] respondent and the learned Government Pleader who took notice on admission on behalf of other R.P.No.525/2021 in W.P.(C)530/2021 5 respondents was asked to get instructions and to file Statement. On 30.03.2021, the 3[rd] respondent entered appearance through counsel and the learned Government Pleader was asked to get instructions from the additional 4[th] respondent as to 'whether the sales tax liabilities on the property in question is one for the period prior to the date of mortgage, ie., 12.12.2014' and the matter was listed on 13.04.2021. On 13.04.2021, the Government Pleader sought further time for instruction and the matter was posted to 16.04.2021. On 16.04.2021, this Court passed the interim order which is sought to be reviewed in this Review Petition and it reads as follows:- _“The learned Government Pleader on instructions submits that the sales tax liabilities on the property is subsequent to the date of the mortgage ie, after 12.12.2014. In the light of the said submission, there will be an interim direction directing the second respondent to effect registration of Exhibit P8 document, subject to the result of the writ petition.”_ 5. Alleging non-compliance with the directions in the above order, the writ petitioner has filed Contempt of Court Case No.1035 of 2021 R.P.No.525/2021 in W.P.(C)530/2021 6 against respondents 1 and 2 in the writ petition namely the District Registrar and the Sub Registrar, Ernakulam. Notice was ordered in the Contempt of Court Case and personal appearance of the respondents therein was dispensed with. Later, when this Review Petition came up for admission, the same was directed to be posted along with the Contempt of Court Case. The parties have also filed their affidavits in the Contempt of Court Case. 6. The order of this Court dated 16.04.2021 is sought to be reviewed on the ground that there is an order of attachment of the property for recovery of sales tax dues and therefore the statutory first charge is in favour of the Government, but, the said fact and the pendency of similar cases could not be brought to the notice of this Court while passing the order dated 16.04.2021. 7. Heard Sri. Y. Jafar Khan, the learned Senior Government Pleader for the Review Petitioners and Retheesh N.A for the 1[st] respondent. R.P.No.525/2021 in W.P.(C)530/2021 7 8. Taking me through the provisions of Section 26 B of the Kerala General Sales Tax Act (KGST Act) and Section 38 of the Kerala Value Added Tax Act (KVAT Act), Sri. Jafar Khan contends that the sales tax payable to the State Exchequer is the statutory first charge on the property of the defaulter and the said charge would continue till it is extinguished by process of law. He further submits that in Ext.P8 sale certificate, there is no mention about the attachment of the property for the sales tax liability. Sri. Jafar Khan also relied on the Division Bench decision of the Madras High Court in **Sreedhar V** _v_ **. Authourised Officer, Indian Bank, Guindy Branch, Chennai** reported in 2018 KHC 2927, the Division Bench decision of the Calcutta High Court in **Corporation Bank and Another** _v_ **. Jayesh Kumar Jha** [2019 KHC 5120], the Division Bench decision of the Bombay High Court in **Medineutrina Pvt. Ltd** _v_ **. District Industries Centre and others** [2021 KHC 3414] and the interim order of this Court in W.P. (C) No. 19291/2020 dated 01.10.2020 in support of his contentions. He also points out that writ appeals are pending against the judgment reported in R.P.No.525/2021 in W.P.(C)530/2021 8 **State Bank of India and Others** _v_ **. State of Kerala represented by the Principal Secretary, Finance Department and Others** [2019 (5) KHC 330: 2019 (4) KLT 521: 2020 (1) KLJ 26] with regard to the statutory first charge. 9.Per contra, the learned Counsel for the writ petitioner resists the contentions of the Review Petitioners by relying on the decisions reported in **Madhan S.** _v_ . **Sub Registrar, Kollam and Others** [2014(1) KHC 249: 2014(1) KLT 406: ILR 2014(1) Ker.586: 2014 (1) KLJ 483: AIR 2014 Ker.54], **Joy M.A** _v_ _**.**_ **Sub Registrar and another** [I.L.R. 2021 (4) Kerala 172], **Travancore Devaswom Board** _v_ **. Deputy Examiner, Local Fund Audit and others** [2020 (3) KHC 129: 2020 (3) KLT 296: ILR 2020 (2) Ker. 820:AIR 2020 Ker.115] and the order of the Apex Court dated 12.08.2021 in **Superintendent Central Excise & Customs** _v_ **. M/s Kotak Mahindra Bank Ltd. & Anr.** [Civil Appeal Numbers 6900-6901/2011]. 10. The date of mortgage of the subject property with the Bank is R.P.No.525/2021 in W.P.(C)530/2021 9 12.12.2014. It is admitted that Annexure A1 order of attachment is effected on the property on 02.03.2017, subsequent to the date of mortgage. The attachment has been effected after the insertion of Section 26E to the SARFAESI Act. According to Sri. Jafar Khan, the sales tax payable to the State Exchequer is the statutory first charge on the property of the defaulter in view of the provisions of Section 26 B of the KGST Act and Section 38 of the KVAT Act and would have priority over secured liability. 11.The question as to whether Section 26E of the SAFAESI Act and Section 31B of the Recovery of Debts and Bankruptcy Act create an overriding and first right in favour of the Banks/ Financial Institutions to recover their dues, over and above the rights of the Revenue created through the KGST Act/ KVAT Act was considered by a learned Single Judge of this Court in **State Bank of India and Others** (supra) and this Court held that, the secured creditor under Section 26E of the SARFAESI Act gets priority over the right claimed by the Revenue in R.P.No.525/2021 in W.P.(C)530/2021 10 recovering the secured debt. According to Sri. Jafar Khan, writ appeals have been preferred against the judgment in **State Bank of India and Others** (supra). However, I find that a Division Bench of this Court in **Travancore Devaswom Board** (supra) has expressed its approval of the above dictum in the decision in **State Bank of India and Others** (supra). The Division Bench in **Travancore Devaswom Board** (supra) has reiterated this position and held that the sale carried out under the SARFAESI Act takes precedence over the statutory charges due to the Government created under KVAT Act or under other State Enactments after the insertion of Section 26E by the Amendment Act of 2016. It is also apposite to note the following paragraphs in the order of the Hon'ble Supreme Court in **Superintendent Central Excise & Customs** (supra): _“On hearing learned counsel for the parties, we are of the view that there is little doubt that the situation that emerges is a creation of a secured debt in favour of the State Bank of India on 24.06.1985 and thereafter the transfer of the debt to the respondent Bank. It is the original date of creation of the security which is of relevance._ R.P.No.525/2021 in W.P.(C)530/2021 11 _It is not possible for the appellant to plead that they have crown debt which would take precedence over a secured liability and fairly, the learned Additional Solicitor General does not even seek to contend it._ _We find that given the aforesaid position, there is no need to go into other issues sought to be raised by either of the parties before us or through the impugned judgment but suffice to say that the respondent Bank cannot be prevented from exercising its rights as a secured creditor on the pretext that there is a debt to the Excise Department arising from the confiscation order dated 25.02.2006.”_ 12. It is too late in the day to contend that sovereign debt has priority over a secured creditor under the SARFAESI Act. Therefore, with regard to the issue of statutory first charge, I do not think that this Court's order dated 16.04.2021 requires to be reviewed. 13. With regard to the contention of the learned Government Pleader that there is no mention in Ext.P8 sale certificate about the attachment of the property for the sales tax liability, the counsel for the writ petitioner relies on the decision of this Court in **Madhan. S** (supra) to contend that attachment effected subsequent to the mortgage created in favour of the bank do not bind the 3[rd] respondent or the writ R.P.No.525/2021 in W.P.(C)530/2021 12 petitioner and has to be effaced after the property is purchased by the writ petitioner under the provisions of the SARFAESI Act. In **Madhan's** case (supra), a learned Single Judge, taking note of relevant statutory provisions as on date and various judicial decisions, held in paragraph 9 as follows: _“9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicial affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.”_ 14. A Division Bench of this Court in **Ali Asharaf M.M. and Another** _v_ . **Sub Registrar, Thrissur (judgment dated 24.7.2015 in** R.P.No.525/2021 in W.P.(C)530/2021 13 **W.A.No.612/2015)** and another Division Bench in **Secretary, Keechery** _v_ . **Service Co-operative Bank Ltd. Sajitha Nizar alias Sajitha P.M. and Others [2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020(6) KLT 68: 2020(4) KLJ 970]** have affirmed the law laid down in **Madhan's** case. The decision in **Secretary, Keechery Service Co-operative Bank Ltd.** (supra) is rendered after the Amendment Act of 2016. Therefore, I do not find any reason to review the order dated 16.04.2021 and the Review Petition is accordingly dismissed. There will be no order as to costs. Sd/- **MURALI PURUSHOTHAMAN JUDGE** R.P.No.525/2021 in W.P.(C)530/2021 14 ## **APPENDIX OF RP 525/2021** **PETITIONERS' ANNEXURES: Annexure A1 TRUE COPY OF THE ATTACHMENT ORDER E2 109/16,110/16,111/16/ST DATED 18.02.2017 OF SPL.TAHSILDAR (RR), KANAYANNUR. Annexure A2 ORDER NO.INS (2) 3152/2020 DATED, 22.12.2020 OF THE DISTRICT REGISTRAR.** ## **spc/**