TMI Blog2020 (2) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... RDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: Ms. Nalini S Lodha(2128) for the Petitioner(s) No. 1 Mr. Chintan Dave, Assistant Government Pleader(1) for the Respondent(s) No. 1,2 Mr HS. Munshaw(495) for the Respondent(s) No. 3 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Constitution of India, the writ-applicant, a Nationalised Bank, has prayed for the following reliefs : 9. The petitioner therefore prays that Hon'ble Court may be pleased to issue appropriate writ, order or direction and be pleased: A. to quash and set aside the Auction Notice published by the respondents in Divya Bhaskar and Gujarat Samachar on 01.11.2015 and to restrain the respondents from auctioning the assets of M/s. Computer Skill Ltd. B. to stay, pending the hearing and final disposal of the present Special Civil Application, the Auction Notice published by the respondents in Gujarati daily viz. Gujrat Samachar and Divya Bhaskar on 04.11.2015. C. to stay, pending the hearing and final disposal of the present Special Civil Application, the auction proceedings scheduled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding at a reserve price of ₹ 3.15 crores and ₹ 16 crores respectively for recovery of the outstanding dues aggregating to ₹ 4708 lacs of the petitioner bank, IDBI bank, GSFC and GIIC plus further interest, expenses and charges. However, the auction was unsuccessful. The petitioner states that the reserve price was fixed on the basis of valuation report obtained by the petitioner. 2.5. The petitioner further states that second e auction sale notice dated 21.09.2013 (copy at Annexure 5 hereto) was published by the petitioner for itself and on behalf of other lenders IDBI bank, GIIC and GSFC for e auction of the secured assets being land, building, plant and machinery on 24.10.2013 at a reserve price of ₹ 16 crores for recovery of the outstanding dues aggregating to ₹ 4708 lacs of the petitioner bank, IDBI bank, GSFC and GIIC plus further interest, expenses and charges. However, the 2nd auction was also unsuccessful. 2.6. The petitioner further states that respondent no.2 by letter dated 24.09.2013 addressed to the authorised officer of the petitioner bank informed that the sales tax dues under the Gujarat Sales Tax Act Central Sales Tax Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 182.83 lacs Total : ₹ 1477.36 lacs 2.10. The petitioner further states that the petitioner bank having learnt about the said auction notice immediately addressed a letter dated 07.11.2015 (copy at Annexure 9 hereto) to the respondent no.1 requesting inter alia to refrain from auctioning the secured assets of the bank and other lenders and withdraw the aforesaid auction notice forthwith and to forward the valuation report based on which the upset price of ₹ 6 crores has been fixed for sale of the assets of the company. However, the petitioner has not received any response thereto nor the valuation report has been provided by the respondents to the petitioner to date. 2.11. The petitioner further states that the respondents, ignoring the request made by the petitioner by letter dated 07.11.2015 and without supplying the copy of the valuation report based on which the upset price of the assets of the borrower company has been fixed by the respondents, requested by letter dated 20.11.2015 (copy at Annexure 10 hereto) to the petitioner to hand over the key ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on 11.08.2016. Learned AGP Mr.Tirthraj Pandya waived rule. 2. Both sides are directed to maintain status quo with respect to the property in question. It would however be open for the parties to jointly suggest sale of the plant and machinery, proceeds thereto to be appropriated subject to outcome of the petition. 6. In the last, the following order was passed on 19th April 2018: 1. This petition is filed by the Union Bank of India challenging the auction notice dated 4.11.2015 published by Asst. Commercial Tax Commissioner, respondent no.1 herein in two daily newspapers for auctioning the assets of M/s. Computer Skill Ltd for recovery of VAT dues of the department. According to the petitioner bank, the said defaulter had borrowed money from the bank and other secured creditors by creating security interest in the immovable properties, which the respondents seeks to sale through the public auction for which notice was issued. According to the petitioner, being a secured creditor, it would have first charge over the properties. Counsel for the petitioner pointed out that the bank has also taken physical possession of the property in question in exercise of powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner bank in a separate account invested in the Fixed Deposit of recurring nature to be appropriated as per the directions of the Court that may be passed at the time of final hearing of the petition. 7. Pursuant to the aforesaid order passed by this Court dated 19th April 2018, the Bank proceeded with the auction of the secured assets and was able to recover an amount of approximately ₹ 13 crores. The sale proceeds, as directed by this Court, have been invested in a fixed deposit by maintaining a separate account. 8. Ms.Nalini Lodha, the learned counsel appearing for the petitioner, clarified that the loan was sanctioned by a consortium of Banks, the petitioner being the lead bank. Therefore, the sale proceeds will have to be divided amongst the secured creditors. 9. Mr.D.R. Bhatt, the learned counsel appearing for the respondent No.3, would submit that so far as the dues of the workmen are concerned, the same has been settled. 10. The only question which we need to decide is, whether the state can put forward its claim of first charge over the secured assets of the borrower or the Bank would have the first charge. 11. The aforesaid issue is no longer res- ..... 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