TMI Blog2018 (4) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that in the instant case there is no deed executed between the parties which required a registration as contemplated under Section 17 of the Registration Act, but actual delivery of the original title deeds relating to the property is completed and the letter was addressed to the Bank. Insofar as the recovery as contemplated under the Central Excise Act or the Customs Act, there is no such provision to provide for precedence as has already been filed by this Court. If that be the position the Order-in-Original and the order passed in an appeal as at Annexures ‘J’ and ‘K’ in the present context would not be sustainable. Petition disposed off. - Writ Petition No. 39662 of 2010 (GM-Res) - - - Dated:- 16-10-2017 - A.S. Bopanna, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in the case of Assistant Commissioner of Central Excise and Customs, Hubli v. Nandi Re-Rolling Mills and Others - AIR 2008 KAR 70 = 2008 (226) E.L.T. 325 (Kar.) and in that light had directed consideration of the matter by the respondent Nos. 1 to 3. Pursuant thereto the order impugned dated 15-4-2009 is passed by the respondent No. l holding that the mortgage as claimed by the petitioner-Bank is to be treated as null and void as no mortgage deed duly registered had been furnished by them and in that light has held that the claim as preferred by the petitioner-Bank would not be sustainable as against the claim of the respondent Nos. 1 to 3. It is in that light the instant petition is filed assailing the order dated 15-4-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. As already noticed, when this Court at the first instance through the order dated 30-9-2008 in W.P. No. 11671/2008 had directed consideration by the respondent No. l, had also taken note of an earlier order of this Court in the case of Nandi Re-Rolling Mills and Other (supra). In that light this Court had observed that if the property had been mortgaged, the secured creditor would have priority. In that view, a perusal of the decision as referred in the case of M/s. Nandi Re-Rolling Mills would indicate that a learned Judge of this Court with reference to the decisions that had been cited has taken into consideration the claim that was made under the Central Excise Act and the Customs Act and was considering the case wherein the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (for short the 1882 Act ) and since the mortgage as claimed by the petitioner had not been registered, no right would accrue in favour of the petitioner to claim to be a secured creditor and therefore, in that light the precedence to sell the property and recover the amount due to them cannot be claimed. Hence, it is contended that the respondents having precedence as a crown debt would be entitled to claim to sell the property and not the petitioner. 8. Firstly what arises for consideration in the factual situation as arisen herein is as to whether the right of the petitioner would be protected only if the mortgage was registered as has been held in the impugned order. To that extent the learned counsel for the petitioner has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age by way of deposit of title deeds. If that be the position, it is clear that in the instant case there is no deed executed between the parties which required a registration as contemplated under Section 17 of the Registration Act, but actual delivery of the original title deeds relating to the property is completed and the letter was addressed to the Bank. The intention of the respondent No. 4 to create the mortgage by way of deposit of title deeds has been expressed. If that be the position, the petitioner herein has become the mortgagee with effect from 2-7-1997 and the right subsisted in favour of the petitioner. Therefore, in that context the claim as made by the respondents is in respect of a property which had already been mortgage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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