9911796707
TMI Blog2023 (12) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to delete the encumbrance attachment entry, dated 05.02.2019 pertaining to Doc.No.9 of 2019, encumbrance attachment entry, dated 31.12.2018 pertaining to Doc No. 61 of 2018, encumbrance attachment entry, dated 31.12.2018 pertaining to Doc Nos. 65 and 66 of 2018, with respect to the subject properties. 2. The case of the petitioner is that the third and fourth respondents have approached the petitioner Bank for financial assistance for developing their business. Accordingly, the Bank extended financial assistance to the tune of Rs. 4 Crores against the securities that were given by the fourth respondent Partnership Firm. The security was also registered through a mortgage deed, dated 11.09.2015 in Doc.No. 6580 of 2015 before the second r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018-19. In view of the same, even though the mortgage properties were sold, the encumbrance certificate reflected, as if, there is a clog in the title by virtue of the entries made in the Encumbrance Certificate due to attachment order passed by the first respondent. It is under these circumstances, the present writ petition has been filed before this Court. 6. The copy of sale certificate that was issued in favour of the auction purchasers, dated 01.02.2023 and 10.02.2023 were also placed before this Court. 7. When the matter was taken up for hearing on 22.11.2023, this Court found that the affidavit filed in support of the writ petition lacks clarity in details and therefore, directed the petitioner to file an additional affidavit. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is apparent from the particulars that have been extracted supra. It is now too well settled that the Bank as a secured creditor will have a priority over the dues that are payable to the first respondent. 10. For proper appreciation, Judgment pertaining to the same issue can be taken note of. This Court in Anjani Synthetics Limited & Others Vs The Sub Registrar & Others reported in 2012(1) MLJ 1009 held as follows: "13. The issue involved in these cases are whether the Income Tax Department can claim priority over the secured debts in favour of the 3rd respondent Bank pursuant to the mortgage, which took place much prior to the Tax arrears being demanded in ITCP-1 notice. It is not in dispute that the Mortgage of the properties, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. Rule 51 is extracted hereunder: "51. Attachment to relate back from the date of service of notice.- Where any immovable property is attached under the Schedule, the attachment shall relate back to, and take effect from, the date on which the notice to pay the arrears, issued under this Schedule, was served upon the defaulter." Hence the date of attachment could be taken as 26.09.2007. 14. But, prior to the attachment, the properties were mortgaged with the 3rd respondent/Bank in the year 2001-2002. Therefore, the 3rd respondent Bank has got priority over the Income Tax Department in receiving its dues. The 3rd respondent Bank brought to auction sale of the properties, pursuant to the order passed by the Debts Recovery Tribunal. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which it has been held that the Crown has no precedence over a pledgee of goods. In the present case, the common law of England qua Crown debts became applicable by virtue of Article 372 of the Constitution which states that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed by a competent legislature or other competent authority. In fact, in Collector of Aurangabad and Anr. vs. Central Bank of India and Anr. 1967 (3) SCR 855 after referring to various authorities held that the claim of the Government to priority for arrears of income tax dues stems from the English common law doctrine of priority of Crown debts and has been given judicial r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
