TMI Blog2023 (12) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. HELD THAT:- It is quite clear from the materials placed before this Court that the properties, which were attached by the first respondent in the year 2018-19, were already a subject matter of mortgage with the petitioner Bank in the year 2015 itself and 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 respondent. The financial assistance was thereafter, enhanced by Rs. 90 lakhs and supplementary mortage deed was also registered on 22.02.2016 in Doc.No.4130/16 on the file of the second respondent. 3. The further case of the petitioner is that the fourth respondent Partnership Firm also received financial assistance to the tune of Rs. 1Crore and this loan was also secured through mortgage by deposit of title deeds registered on 16.07.2015 as Doc.No. 4784/2015 before the second respondent. They also took an additional loan of Rs. 50 lakhs through a sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Accordingly, an additional affidavit has been filed before this Court. The relevant portions in the additional affidavit are extracted hereunder: 4. I submit that the correlation of MOD schedule and the attachment order schedule are given below. A. The schedule II A in MOD doc.No.4784 of 2015 dated 16.07.2015 and the attachment order, dated 01.02.2019 are one and the same. Sl.No Survey No. 1 95/1A 2 95/1B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89/2 1.34.5=3 acres 32 cents 13 90 1.18.5=2 acres 93 cents 8. Heard the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the first respondent and the learned counsel appearing for the second respondent. 9. It is quite clear from the materials placed before this Court that the properties, which were attached by the first respondent in the year 2018-19, were already a subject matter of mortgage with the petitioner Bank in the year 2015 itself and 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with Section 89(4) of the Registration Act, 1908. The first respondent returned the sale certificate with the check-slip stating that a communication was received from the Income Tax Department that the properties were attached by the Income Tax Department on 05.01.2010. The attachment was made by the Income Tax Department under Section 222(1) of the Income Tax Act for the tax arrears. The attachment was made, pursuant to the ITCP-I certificate dated 26.09.2007. As per Rule 51 of the II Schedule to the Income Tax Rules, the date of attachment could relate back to the date of ITCP-I certificate. Rule 51 is extracted hereunder: 51. Attachment to relate back from the date of service of notice.- Where any immovable property is attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the secured debts . 11. Subsequently, the decision of the Hon'ble Supreme Court in The Stock Exchange, Bombay Vs V.S.Kandalgaonkar Others reported in 2014(7) MLJ 489 and 2015(2) SCC 1 can also be taken note of, wherein, it has been held as follows: 39. The first thing to be noticed is that the Income Tax Act does not provide for any paramountcy of dues by way of income tax. This is why the Court in Dena Bank s case (supra) held that Government dues only have priority over unsecured debts and in so holding the Court referred to a judgment in Giles vs. Grover (1832) (131) English Reports 563 in which it has been held that the Crown has no precedence over a pledgee of goods. In the present case, the common law of Engla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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