TMI Blog2011 (11) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of dues in the amount of ₹ 1.22 Crores. 2. The Central Bank of India had sanctioned credit facilities to the Petitioners. On a default in the payment of the dues a notice was issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for a claim in an amount of ₹ 9.67 Crores. On 27 October 2008 a measure was taken under Section 13(4). The debt of the bank was assigned to the Second Respondent which is an asset reconstruction company on 30 March 2011. The Second Respondent took symbolic possession on 24 June 2011. On 13 September 2011 as noted earlier an auction notice has been issued by the Assistant Commissioner of Sales Tax, C621 Palghar for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation Act would not override Section 38C of the Bombay Sales tax Act 1959. 5. The issue which falls for determination in these proceedings is no longer res intergra. In Central Bank of India (supra), the Supreme Court has held that (i) The Securitisation Act does not create a first charge in favour of banks, financial institutions or secured creditors qua the property of the borrower; (ii) A first charge on property is created by state legislation such as Section 38C of the Bombay Sales Tax Act 1959 which cannot be destroyed by implication or inference notwithstanding the fact that banks fall in the category of secured creditors; (iii) The provisions contained in Section 38C of the Bombay Sales Tax Act are not inconsistent with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the DRT Act or Section 35 of the Securitisation Act. 6. Admittedly, and on this there is no dispute before the Court, the property has been put to sale by the First Respondent in realisation of the sales tax dues. Section 38C of the Bombay Sales Tax Act 1959 provides that notwithstanding anything contained in any contract to the contrary but subject to any provision regarding first charge in any Central Act for the time being in force, any amount of tax, penalty, interest or any other sum, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or, as the case may be, person. Section 38B stipulates that for the purpose of effecting the recovery of the amount of tax, penalty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out withdrawing or abandoning the O.A. filed before the DRT under the DRT Act. (ii) Whether recourse to take possession of the secured assets of the borrower in terms of Section 13(4) of the NPA Act comprehends the power to take actual possession of the immovable property. (iii) Whether ad valorem Court fee prescribed under Rule 7 of the DRT (Procedure) Rules, 1993 is payable on an application under Section 17(1) of the NPA Act in the absence of any rule framed under the said Act. 8. In paragraph 24 of the judgment the Supreme Court observed that Section 13(6) of the Securitisation Act shows that once the bank has taken possession of the asset, the right title and interest in that asset can be dealt with by the bank as if i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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