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2018 (12) TMI 1933 - HC - Indian LawsJurisdiction - Attachment of land owned by respondent No.1 - power and jurisdiction of respondent Nos.3 and 4 to attach the immovable property of respondent No.1, that is mortgaged with the petitioner bank - non-compliance with the notice issued under Section 13(2) of the SARFAESI Act - non-performing assets - HELD THAT:- In the present case, the petitioner and respondent No.1 are the Cooperative Societies, registered under the Maharashtra Cooperative Societies Act. There is no provision under the Maharashtra Cooperative Societies Act similar to Sections 529 and 529A of the Companies Act. There cannot be any dispute with the proposition that the welfare legislation will have to be liberally construed and the payment of gratuity would be a part of welfare legislation as has been held by the Apex Court in the case of All India Allahabad Bank Retired Employees Association [2009 (12) TMI 1024 - SUPREME COURT]. In the said case, the question before the Apex Court was whether the retired employees of the appellant Bank therein were entitled for the payment of gratuity under the provisions of Payment of Gratuity Act. In that context, the Apex Court had observed that the said remedial statute will have to be liberally construed. In the present case, the dispute would be about the priority of claim, whether the claim of the petitioner bank would have a priority over the claim under the Payment of Gratuity Act visavis the provisions of the SARFAESI Act. The Apex Court in the case of UNION OF INDIA VERSUS SICOM LTD. [2008 (12) TMI 53 - SUPREME COURT] has unequivocally held that considering the statutory right of the Financial Corporation under the State Financial Corporations Act and the non obstante clause occurring therein, the Corporation had a preferential claim. The SARFAESI Act has also been amended and Section 26E is introduced with the non obstante clause giving a priority claim over all other debts - The recovery certificate has been legitimately and validly issued. However, pursuant to the said recovery certificate, the secured assets of respondent No.1 with the petitioner bank cannot be attached under the said recovery certificate and as observed above, after the sale of the assets of respondent No.1 and realisation of the dues of the petitioner, if certain amount remains, then respondent Nos.5 to 62 would be entitled for the same. The attachment over the secured assets with the petitioner bank i.e. the properties of respondent No.1 bearing Gat Nos.44/1, 44/2 and 44/3 is quashed and set aside. However, the prayer of the petitioner for quashing recovery certificate is rejected - Application disposed off.
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