TMI Blog2024 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act. The reason being that Section 142A itself is a provision which saves the provisions of the SARFAESI Act under which the action was resorted by the petitioner to recover its dues from respondent No. 2. In any event, it is well settled that unless there is a preference given to a Crown debt by a statute, the dues of a secured creditor like the petitioner would have preference over Crown debts. It may also be observe that in the present case the impugned letter has been addressed at the stage of investigation. It is averred in the reply affidavit that a final order-in-original is passed against respondent No. 2. It is informed by the learned Counsel for the petitioner that such order is subject matter of challenge in independent proceedings. Thus, the impugned communication in any event would pale into insignificance. The impugned communication dated 2 November 2015 is quashed and set aside - petitioner is permitted to proceed further in regard to the actions against respondent No. 2 and the secured assets, as initiated under the SARFAESI Act - petition allowed. - G. S. KULKARNI FIRDOSH P. POONIWALLA, JJ. For the Petitioner : Mr. Sarthak Utangale i/b. M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s books, the account of respondent No. 2 was declared as Non-Performing Asset ( NPA ). The petitioner in these circumstances intended to proceed to exercise its powers under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act ) to recover the amounts. Accordingly, a notice was issued to respondent No. 2 under the provisions of Section 13(2) of the SARFAESI Act. As despite issuance of such notice, respondent No. 2 did not come forward to pay the amounts as defaulted and respondent No. 2 continued to be a defaulter. The petitioner, thus initiated action by invoking Section 14 of the SARFAESI Act, so as to obtain appropriate orders from the District Magistrate, Raigad. However, before any order could be passed on such proceedings, the impugned letter dated 2 November 2015 came to be addressed to the petitioner, on behalf of the Directorate of Revenue Intelligence / respondent No. 1 The contents of the said letter read thus:- F. No.DR1/MZU/B/INT-66/2015 Dated: 02.11.2015. The Manager, Bank of Maharashtra, Nerul Township Branch, Sahayof Aptt., Sector 9, Nerul, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned to the firms controlled by Rajendra Vitthal Shinde. 5. As the investigations are in progress, you are hereby informed not to take any decision on any of the property document available with you without consulting this office. On completion of investigations, we would forward notice to your bank for your information, please. 6. .. Sd/- (Ashish Mangaonkar) Senior Intelligence Officer (emphasis supplied) 4. As seen from the aforesaid letter of respondent No. 1, merely for the reason that investigations was in progress against respondent No. 2, the Senior Intelligence Officer informed the petitioner not to take any decision on any property or the documents of respondent No. 2, available with the petitioner in its capacity as a secured creditor, without consulting respondent No. 1. It was also recorded that on completion of the investigation, respondent No. 1 would forward a notice to the petitioner for information. 5. Considering such letter to be an embargo on the further action to be taken under the SARFAESI Act, the petitioner is before the Court praying for the aforesaid reliefs. 6. Learned Counsel for the petitioner in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary contained in any Central Act or State Act, any amount of duty, penalty, interest or any other sum payable by an assessee or any other person under this Act, shall, save as otherwise provided in section 529A of the Companies Act, 1956, (1 of 1956 51 of 1956)the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002, (54 of 2002.) be the first charge on the property of the assessee or the person, as the case may be. 9. We may also observe that in so far as the recovery of the debts which are due and payable by respondent No. 2 to the petitioner are concerned, certainly the petitioner has acted under the provisions of the SARFAESI Act which is a Special Act in so far as such recovery is concerned. Section 35 of the SARFAESI Act would ordain that the provisions of such Act shall have an overriding effect over the other laws. Section 35 of the SARFAESI Act reads thus:- 35. The provisions of this Act to override other laws. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties who may have claims, such as the Respondent Custom Authorities, would not be prejudiced. 8. Learned counsel for the Petitioner states that the Petitioner bank would proceed to take measures under the SARFAESI Act and if any amount remains balance after satisfying the claim of Petitioner, the Petitioner is under a duty to distribute the balance amount as per the claims received. The statement made by learned counsel for the Petitioner on instructions is accepted. We permit the Petitioner to proceed to take measures under the SARFAESI Act in respect of the property in question. The Petitioner Bank will, if such a request is received from the Respondent Custom Authorities to inform them about the action taken by the Petitioner and the quantum of sale proceeds, will give necessary information to the Respondent Custom Authorities. We find ourselves in complete agreement with the view taken by the co-ordinate Bench of this Court in the case Bank of India Vs. Rajendra Vitthal Shinde Ors. (supra). 12. We may also observe that in the present case the impugned letter has been addressed at the stage of investigation. It is averred in the reply affidavit that a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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