TMI Blog2020 (3) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... 2357 of 2019 in Company Petition (IB) No. 1514 (MB)/2017 is stayed. - R/SPECIAL CIVIL APPLICATION NO. 23256 of 2019 - - - Dated:- 26-12-2019 - HONOURABLE MR.JUSTICE BIREN VAISHNAV MR. KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MS. SHRUTI PATHAK, AGP WITH MR. MAULIK NANAVATI FOR THE PETITIONER ORDER 1 Draft amendment granted. In this petition under Article 226 of the Constitution of India, the State has challenged the order dated 18.11.2019 passed by the National Company Law Tribunal, Mumbai Bench, in Misc. Application No. 2357 of 2019 in Company Petition No. 1514/I BC/NCLT/MB/MAH.2017. By the operative part of the order so passed, the Tribunal has directed concerned authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of appropriate application. (b) In an application under Section 7 of I.B Code, the Company Law Tribunal on 19.07.2018, passed an order clause 5 of which reads as under: 5 The request of the resolution professional is that the attachment made by the several authorities as listed in the application and details of the property, this Bench may pass an order for lifting attachment. However, the admitted position is that the attachment by the other department is prior in date from the commencement of Moratorium. Since the attachment is not after the declaration of Moratorium, therefore, at this stage interference is not judicially permissible....... In other words, according to the learned Advocate General, the Tribunal was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter adjudicating miscellaneous application filed by the State Tax Department, the order be passed. However, by the impugned order, the Tribunal has ordered lifting of the attachment by which the State is aggrieved. 3 Learned Advocate General Shri Kamal Trivedi for the State would contend that the Tribunal has erred in relying on a decision of the Andhra Pradesh High Court in the case of Leo Edibles Fats Limited vs. The Tax Recovery Officer, Income Tax Department. Before the Andhra Pradesh High Court, what was under consideration was effect of attachment under Section 178(6) of the Income Tax Act. The section which was under consideration was the amended section 178(6) by which sub-section 6 of section 178 provided that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the I BC, particularly Sections 3(4), 3(30) and 3(31), Mr.Kamal Trivedi, learned Advocate General, would contend that reading these three definitions conjointly would undisputedly indicate that the State has a charge over the property as a secured creditor in whose favour there was a security interest. Mr.Kamal Trivedi, then inviting my attention to the provisions of Section 52 read with section53 of the I B Code would contend that in accordance with section 53(1)(b)(ii), the State would be a secured creditor under this provision and not one under Section 53(1)(e) of the Code. The judgment of the Andhra Pradesh High Court was in context of attachment simplicitor and the exception carved out in the application of the I BC to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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