S. K. Bakshi Vs. Punjab National Bank and others - It was incumbent upon the Bank to disclose the encumbrances and litigations on the same or tenancy, if any, attached to the property to all the persons who wanted to participate in the same and to the successful bidder. By including a clause of ‘as is where is’ it would not be sufficient for respondent No. 1 from disclosing encumbrances or handing over the property to the petitioner.

High Court of Jammu & Kashmir and Ladakh (30.11.2022) in S. K. Bakshi Vs. Punjab National Bank and others [WP(C) No. 465/2021, CM No. 4507/2021]  held that;

• It was incumbent upon the Bank to disclose the encumbrances and litigations on the same or tenancy, if any, attached to the property to all the persons who wanted to participate in the same and to the successful bidder. By including a clause of ‘as is where is’ it would not be sufficient for respondent No. 1 from disclosing encumbrances or handing over the property to the petitioner.

•  Where the immovable property sold is subject to any encumbrances, the authorized officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him.

• Though, the physical possession of the property need not be taken before being put to auction but the respondents cannot shirk from their duty to hand over the physical possession of the property to the auction purchaser. 

• Ordinarily, the sale would be complete on the receipt of the entire sale consideration and handing over the possession but if there was encumbrances mentioned in the sale certificate or in the auction, then it could be argued that the petitioner had entered into an agreement knowing this fact and had purchased the property, thus, taken the risk which came with it.

• It was the responsibility of respondent No. 1 to specify the encumbrance attached to the property which was there in their knowledge and having failed to do so, respondent No. 1 is duty bound to provide the physical possession of the property to the petitioner.

 

Excerpts of the order;

# 01. The petitioner in this petition seeks issuance of appropriate writ of mandamus, order or direction to the respondents to put him into physical possession of the property being a double story commercial building constructed on a plot measuring 20′ x 60′ on shop site No. 115 Phase-I Fruit Market Complex, Narwal Jammu. The case set up by the petitioner is that respondent No. 1/Punjab National Bank had issued an e-auction sale notice in the newspaper on 04.09.2019 as per SARFAESI Act and Rules with respect to auction of Double Story Commercial Building constructed on a plot measuring 20′ x 60′ on Site No. 115 Phase-I Fruit Market Complex, Narwal Jammu owned and possessed by late Sh. Vipin Kumar Gupta. This premise was leased out and possessed by legal heirs of deceased lessee namely Vipin Kumar Gupta, who had mortgaged the lease hold rights of the property which were granted to him by the Jammu & Kashmir Horticulture Department by way of Lease Deed dated 15.01.2011 executed by the said department in his favour. As the borrower of the property, i.e., M/s N. S. Walnut became defaulter, the property was proceeded against and ultimately, e-auction of the property was held on 09.10.2019. The petitioner participated in the public e-auction process initiated by respondent No. 1 for sale of its secured assets and was declared as successful auction purchaser on 09.10.2019 of Double Story Commercial Building constructed on a plot measuring 20′ x 60′ on Site No. 115 Phase-I Fruit Market Complex, Narwal, Jammu.

 

# 02. The petitioner was directed by the respondents to make payment of entire bid amount within a period of fifteen days i.e., before 24.10.2019, failing which, earnest money submitted by him would be forfeited. The petitioner, accordingly, deposited the entire bid amount of Rs.1, 67, 50,000/- (Rupees one Crore Sixty Seven Lakh and fifty thousand only) with the bank. After receiving the entire amount, the respondent No. 1 had to issue a sale certificate as well as give physical possession of the property. The contention of the petitioner is that the sale certificate of the property was issued to the petitioner on 03.01.2020, which stated handing over the delivery of possession but, in fact, the physical possession of the property was not given to the petitioner. The petitioner immediately approached the respondents for handing over the physical possession of the property to him but he was informed that some trespassers had taken possession of the said property and the Bank has initiated the proceedings against them. The petitioner, accordingly, again vide his e-mail dated 16.03.2020 requested the Bank to deliver the physical possession of the property sold to him which had not been given till date.

 

# 03. Respondent No. 1 in reply to this e-mail had stated that the Bank had sold the property on the basis of symbolic possession and the Bank had moved to the appropriate authority for removing encumbrances from the property in question. However, during the process, some self claimed owners of the property had managed to get restraining order from the Court and immediately after getting the said order, the Bank had also moved to the Court and on 03.01.2020, though the Bank was successful in taking the physical possession of the said property and on the same day had also issued a sale certificate to the successful bidder, i.e., the petitioner but unfortunately on the same day, some miscreants broke open the seal and locks of the Bank from the aforesaid property and regarding this, the Bank has already lodged an FIR with the competent authority. It was further stated that the respondent No. 1 is in procedure of getting back the possession of the aforesaid property which is under process as per the law.

 

# 04. The grievance of the petitioner is that the sale certificate was issued to the petitioner as the respondent No. 1 had auctioned the aforesaid premise and the petitioner has purchased the same in auction by paying the entire auctioned amount of Rs. 1,67,50,000/- (Rupees one crore sixty seven lakh and fifty thousand only). The respondents after depositing the bid amount were duty bound to handover not only the sale certificate but also to deliver the physical possession of premise purchased by him in the auction. The respondents, as per the Sale Certificate dated 03.01.2020, acknowledged the receipt of the sale price in full and have stated that the sale of scheduled property was made free from all encumbrances known to the secured creditor. However, the petitioner was not put in physical possession of the property as reflected in the reply to e-mail by respondent No. 1 which stated that some miscreants had broken the seal and locks of the Bank from the property and the Bank is in procedure to get back the same. Thus, it is submitted that respondent Nos. 6 & 7 are the trespassers over the property purchased by the petitioner, for which, an FIR has been lodged and as such, the respondents are duty bound to take an action to evict respondent Nos. 6 & 7 and hand over the physical possession of the property which is purchased by the petitioner in auction. Thus, the petitioner seeks a writ of mandamus directing the respondents to put the petitioner into physical possession of the property i.e., Double Story Commercial Building constructed on a plot measuring 20′ x 60′ on Site No. 115 Phase-I Fruit Market Complex, Narwal Jammu.

 

# 05. Learned counsel for the respondent No. 1 submits that the property was intended to be transferred or conveyed on ‘as is where is’ basis as per the terms and conditions of e-auction notice without any warrantees by the respondent and their particulars were given in the notice and the respondent would not be responsible, therefore, Bank fulfilled its obligations. In the objections, the respondent No. 1 had admitted that M/s N. S. Walnut become defaulter in loan amount, as such, the provisions of SARFAESI Act were invoked against him and the property is mortgaged and proceeded against which has resulted in public auction of the aforesaid property. The petitioner was declared successful bidder and had deposited the bid amount after being declared as successful bidder. The respondent has also stated that the Bank had taken symbolic possession of the property and in terms of Section 14 of the SARFAESI Act, the Bank had applied to the District Magistrate, Jammu for taking physical possession of the property auctioned by them and the District Magistrate, Jammu has passed an order No. SARFAESI/234/2018 dated 12.03.2018 directing Tehsildar, Bahu to take over the possession of the property and also directed to take assistance of the police for the same. At the time of taking over the physical possession of the property, respondent No. 6 requested the authorities to grant some reasonable time to vacate the premises and settle the matter as taking over of the property will result in closure of this business. Accordingly, a week’s time was granted to him on 21.10.2020 on humanitarian ground to settle the issue. However, the private respondents resorted to civil litigation with respondent No. 1 on the basis of Agreement to sell the property. Two parallel suits were filed, challenging the same order and interim order was also passed in their favour by the City Judge, Jammu which was set aside by the court of 1st Additional District Judge, Jammu holding that the civil suits are not maintainable. Subsequently, the possession of the property was taken on spot by the authorized officer in presence of the Naib-Tehsildar concerned and other witnesses on 03.01.2020.

 

# 06. According to respondent No. 1, the physical possession of the property was delivered to the petitioner free from all encumbrances on the strength of sale certificate, as such, they had discharged their duties.

 

# 07. It is submitted that after issuance of sale certificate, the physical possession of the property was delivered to the petitioner on 03.01.2020 and Panchnama was prepared on spot. Though, as a matter of abundant caution on the request of the petitioner, security guards were kept on the said property. On the same day, however, respondent No. 1 was informed that respondent Nos. 6 & 7 had made forceful entry in the auctioned property, therefore, legal action was taken against them by lodging an FIR. The respondent No. 1 had, in fact, written to the Inspector General of Police on 24.06.2020 seeking direction to the Police Station Bahu fort to remove the trespassers who have broken the locks of the Bank from the property illegally without any authority. They had also written to the District Magistrate, Jammu on 02.09.2020 seeking direction for restoration of possession over the property which had been taken over by the miscreants on 03.01.2020.

 

# 08. In their reply, respondent Nos. 6 & 7 submitted that Vipin Kumar Gupta had executed a formal agreement to sell, beside acknowledgment receipt in their favour, fortifying the sale agreement and they had all along be conducting their business under the name of M/s N. S. Walnut Industry. In the year 2017, they have received a notice from respondent No. 3, the authorized officer of respondent No. 1, under the SARFAESI Act and accordingly, they challenged the same before the City Judge, Jammu on 29.08.2017 who passed an interim order in their favour by which respondents were directed to maintain status quo qua the physical possession of the property which was made absolute on 02.02.2018 and Respondent No. 1 preferred an appeal against the said order before the 1st Additional District Judge, Jammu, who has allowed the appeal and set aside the order of the City Judge, Jammu. Respondent Nos. 6 & 7 submit that they had filed a suit in the Court of Sub-Judge, Jammu by which respondent No. 3 was restrained from interfering into the peaceful possession of the answering respondents with regard to the suit property. Respondent No. 1 thereafter resorted to muscle power and barged into the shop of the petitioner and caused huge loss to them, for which, they have filed the complaint. They have refuted the fact that the suit property was never vacated by them. It is categorically stated that the suit property and possession all along remained with the respondents and in fact, this is a civil dispute between the parties, as such, the respondents cannot seek physical possession of the property.

 

# 09. The procedure under which the secured creditors can enforce the liability discharged by the borrower is provided under Section 13(4) of the SARFAESI Act. If the borrower fails to discharge his liability after issuance of notice under Section 13(2), the secured creditor can take possession of the secured asset of the borrower and has a right to transfer the same by way of lease agreement or sale. Section 13(4) of the Act being relevant reads as under:

• “(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:—

• (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset;

• (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:

• Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:

• Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;]

• (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

• (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.”

 

# 10. The respondent No. 1, as per the submissions had taken over the possession of the secured asset and auctioned the same for recovery from the borrower by way of e-auction and the property was being sold on ‘as is where is’ basis. Therefore, as per the e-auction, it is apparent that the respondent No. 1 had not taken actual physical possession of the property.

 

# 11. As per Section 13(4) of the SARFAESI Act read with Clause 9 & 10 of Rule 9 of the Security Interest (Enforcement) Rules, 2002, it was incumbent upon the authorized officer/respondent No. 1 to deliver the property to the purchaser free from all encumbrances on deposit of money in the Bank. Rule 9 Clause 9 & 10 are to be read with Section 13(4) of the Act which reads as under:

• “(9) Time of sale, Issue of sale certificate and delivery of possession, etc. –

• (9) The authorized officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above.

• (10) The certificate of sale issued under sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not.”

 

# 12. No doubt, the Bank could auction the property even with encumbrances attached to property but it was incumbent upon the Bank to disclose the encumbrances and litigations on the same or tenancy, if any, attached to the property to all the persons who wanted to participate in the same and to the successful bidder. By including a clause of ‘as is where is’ it would not be sufficient for respondent No. 1 from disclosing encumbrances or handing over the property to the petitioner.

 

# 13. In terms of the Security Interest (Enforcement) Rules, 2002, specifically Rule 9(9) which states that the authorized officer had to deliver the property to the purchaser free from encumbrances, known to the secured creditor on deposit of the money as specified in Sub-Rule 7 but in fact respondent No. 1 has suppressed all litigations and encumbrances relating to the auction property and further auctioned the property and though a sale certificate was issued to the effect that the property is free from all encumbrances and the possession has been delivered to the auction purchaser but in fact on the same day, panchnama of the possession of the property was done. However, in terms of the reply to e-mail, respondents have themselves admitted that though they were successful in taking over the physical possession of the property but on the same day, some miscreants broken the seal and locks of the bank from the property and a complaint was lodged by the Bank before the authorities. Thus, the fact remains that the possession of the property mentioned in the auction notice was not taken by the bank till 03.01.2020 and this possession was not with the bank on the very same day, as such, could not be delivered to the petitioner.

 

# 14. The petitioner being a bona fide purchaser was entitled not only to the sale certificate but also to the physical possession of the property which was to be provided to him by the respondents under the Security Interest (Enforcement) Rules, 2002. In terms of Rule 9(9) the authorized officer had to deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7). Where the immovable property sold is subject to any encumbrances, the authorized officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him.

 

# 15. The respondent No. 1, categorically had in the notice as well as in the sale certificate stated that the property is free from all encumbrances, therefore, respondent No. 1 was bound to deliver the physical possession of the property to the purchaser. The petitioner despite paying a huge amount in the auction has not been delivered the property, rather entire auction proceedings have lost their value and come to naught. Though, the physical possession of the property need not be taken before being put to auction but the respondents cannot shirk from their duty to hand over the physical possession of the property to the auction purchaser. If respondent No. 1 was not in a position to take the physical possession of the same before the sale, then they had to adopt course under Section 14 of the Act. The contention of respondent No. 1 that there is no statutory obligation on their part to put the auction purchaser in possession thus does not hold any merit. Ordinarily, the sale would be complete on the receipt of the entire sale consideration and handing over the possession but if there was encumbrances mentioned in the sale certificate or in the auction, then it could be argued that the petitioner had entered into an agreement knowing this fact and had purchased the property, thus, taken the risk which came with it. But in the present case, it has been specifically mentioned in the sale certificate that there is no encumbrance in the property, the petitioner could not be expected to know that the property is already in use by some persons. It was the responsibility of respondent No. 1 to specify the encumbrance attached to the property which was there in their knowledge and having failed to do so, respondent No. 1 is duty bound to provide the physical possession of the property to the petitioner.

 

# 16. Respondent Nos. 6 & 7 by breaking the locks of the bank and by forcefully entering have in fact committed trespass in the property and the entire purpose of proceedings of the auction have been set to naught.

 

# 17. It is also submitted by respondent Nos. 6 and 7 that this petition is not maintainable as the only remedy is available to the petitioner is under Section 17 of the SARFAESI Act. Reliance is placed on the judgment of the Hon’ble Supreme Court, in case titled ‘Agarwal Tracom Pvt. Ltd. vs. Punjab National Bank and others’ dated 27.11.2017. This, however, is opposed by learned counsel for the petitioner by submitting that by not delivering the possession of the property to the petitioner by the Bank is not one of the measures specified under Section 13(4) of the SARFAESI Act, therefore, provisions of Section 17 of the SARFAESI Act are not attracted, as such, this action of the respondents cannot be challenged under Section 17 of the said Act.

 

# 18. Thus, in terms of this Act, an application under Section 17 can be made to DRT by “any person” including borrower to challenge any of the measures referred to in Section 13(4) once taken by the secured creditor. But, in this case, the petitioner who is the auction purchaser of the property and has been promised by the Bank that the delivery of the property is free from all encumbrances cannot proceed under Section 17 as it does not envisages any of the grounds enumerated in Section 13(4). Thus, the judgment relied upon is not applicable to the facts of this case.

 

# 19. The third party, who comes forward to purchase the secured asset, must have a confidence that he would get the title to the property at the earliest. If the transferring of the property by way of title is going to be delayed endlessly, then the object of the Act which is meant for speedy recovery would be defeated as a whole. The duty is on the respondent No. 1 to hand over the possession of the property.

 

# 20. In view of the aforesaid discussion, this petition is allowed and respondent No. 1 is directed to deliver the clear physical possession of the double story commercial building constructed on plot measuring 20′ x 60′ on shop site No. 115 Phase-I Fruit Market Complex, Narwal, Jammu at the earliest to the petitioner by taking any measures available to them as per law.

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Janata Sahakari Bank Ltd., Vs Tax Recovery Officer VII, Income Tax Department - Thus, the mortgages, transactions or transfers are made during the pendency of the Income Tax proceedings, then all such transfers, mortgages, transactions are void under Section 281 of the Income Tax Act and any such mortgage or attachment made by the Bank during the pendency of the Income tax proceedings, cannot be a ground to claim priority based on the provisions of the SARFAESI Act or DRT Act.

HC Madras (19.07.2021) in Janata Sahakari Bank Ltd., Vs Tax Recovery Officer VII, Income Tax Department (W.P.No.15437 of 2014 and M.P.No.1 of 2014) held that;

• Thus, it is unambiguous that the transactions or transfers made during the pendency of the Income tax proceedings are void.

• Therefore, even before invoking the provisions of the SARFAESI Act and DRT Act, Section 281 of the Income Tax Act intervenes and declares the transactions or transfers as void, if any such transactions or transfers are made during the pendency of the Income Tax proceedings. In such circumstances, invoking the provisions of the SARFAESI Act or DRT Act for the purpose of claiming priority would not arise at all.

• In such cases, the Income tax proceedings are known only to the tax defaulter and not to the third party purchaser or the mortgagee Bank or otherwise.

• Thus, the void transfers or transactions made during the pendency of the Income tax proceedings cannot be the subject matter for any mortgage or further transfers or transactions etc., This being the possible perceptions, the Courts are bound to consider, which transaction will prevail over and which Act would be applicable with reference to the facts and circumstances.

• There is a consensus of judicial opinion on the question that the arrears of tax due to the State can claim priority over private debts. This position has not been seriously disputed.

• The doctrine may not apply in respect of debts due to the State if they are contracted by citizens in relation to commercial activities which may be undertaken by the State for achieving socio-economic good.

• Thus, the mortgages, transactions or transfers are made during the pendency of the Income Tax proceedings, then all such transfers, mortgages, transactions are void under Section 281 of the Income Tax Act and any such mortgage or attachment made by the Bank during the pendency of the Income tax proceedings, cannot be a ground to claim priority based on the provisions of the SARFAESI Act or DRT Act.

Blogger's Comments; If the above principle is adopted the secured creditor can never claim priority under SARFAESI or DRT Act.  due to overlapping income tax proceedings of different financial years at any given point of the time. This issue needs to be seriously examined. 

Excerpts of the Order;

The writ on hand is filed questioning the validity of the proceedings dated 27.12.2007 passed by the respondent.

Contention of the Petitioner;

# 2.The impugned proceedings reveals that it was issued for recovery of income tax arrears in the case of M/s.NEPC Agro Foods Limited and its Directors Shri.Raj Kumar Khemka, Shri.Ravi Prakash Khemka and Shri.Thirupathy Kumar Khemka. The respondent had noticed from the advertisement published in the daily newspaper 'Dinamalar' on 20.12.2007 that the Bank has taken possession of the property at Plot No.83 at Ambattur Industrial Estate, Chennai-53 for the loan amount of Rs.28,89,35,552/- due from M/s.NEPC Agro Foods Ltd., and its Directors Shri.Raj Kumar Khemka, Shri.Ravi Prakash Khemka and Shri.Thirupathy Kumar Khemka.

# 3.The impugned order further proceeds that the above defaulters M/s.NEPC Agro Foods Ltd. and its Directors Shri.Raj Kumar Khemka, Shri.Ravi Prakash Khemka and Shri.Thirupathy Kumar Khemka are in tax arrears to the Income Tax Department as below:

• 1.M/s.NEPC Agro Foods Ltd. Rs.20,37,11,265

• 2.Shri.Raj Kumar Khemka Rs. 51,08,289

• 3.Shri.Ravi Prakash Khemka Rs. 2,11,52,008

• 4.Shri.Thirupathy Kumar Khemka Rs. 59,35,011

# 4. In this connection, the respondent informed that the property mentioned in the newspaper, i.e. Plot No.83, Ambattur Industrial Estate, Chennai-53 was already attached in Form ITCP 16 by the Income Tax Department on 18.06.2003 and the same was served to the defaulter assessee company on 18.06.2003. A copy of the Form ITCP 16 also enclosed along with the impugned order which was communicated to Shri.A.S.Bapalt, the Authorised Officer, Janatha Sahakari Bank Ltd., Pune [the petitioner herein].

# 5.The petitioner Janata Sahakari Bank Ltd., made a submission that the attachment was made against M/s.NEPC Agro Foods Ltd. and they are neither a proper nor necessary party since the petitioner Bank was under lawful possession of the subject property since from 19.12.2007 which was affirmed by the Debt Recovery Tribunal, Debt Recovery Appellate Tribunal and the Madras High Court.

# 8.Before the Cooperative Court, NEPC Agro foods Ltd and NEPC India Ltd, admitted their joint liability and entered into duly recorded consent award dated 15.2.2007, wherein they agreed to repay a sum of Rs. 15,51,00,000/- on or before 15.3.2007 as full and final settlement of dues. It was an expressed term of the consent award that failing repayment the

petitioner could proceed with its remedies under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act [SARFAESI Act], 2002. Both NEPC Agro foods Ltd and NEPC India Ltd defaulted on the terms of the consent award and no payments were made.

# 9.The said default by these two Companies forced the petitioner to proceed and take possession of the property on 19.12.2007 in continuation of the action already initiated under the SARFAESI Act, 2002. It is contended that since 2007 the Petitioner is in possession of the schedule mentioned property.

# 10.The SARFAESI action initiated by the Petitioner Bank was challenged before the DRT-I, Chennai but the original stay was vacated by the High Court. On remand, DRT dismissed S.A. No. 68 of 2008. An Appeal was made before the Debts Recovery Appellate Tribunal, which was also dismissed. At the time of filing of the writ petition, no proceedings were pending relating to the loan agreement entered into between the petitioner bank and the NEPC Agro Foods Ltd. It is contended that the petitioner bank initiated winding up proceedings before the Madras High Court against M/s.NEPC Agro Foods Ltd. in C.P.No.247 of 2008. Meanwhile, the petitioner bank received the notice dated 27.12.2007 consequent to the advertisement dated 20.12.2007 in the Dinamalar newspaper from the respondent informing the petitioner of an Income Tax attachment by the respondent on the same schedule property vide Form ITCP6 dated 18.06.2003.

# 11.The petitioner states that the encumbrance certificate issued by the Inspector General of Registration reflects the charge created by the respondent vide Form ITCP 16 bearing reference No.T.R.No.130/CEN.I(1)/2003-04 dated 18.06.2003. The attachment was registered and started reflecting on the encumbrance certificate from 31.12.2007 as other charge after possession of the property was undertaken under SARFAESI Act by the petitioner. The petitioner bank's charge has been registered as a mortgage since 16.10.2002.

 

# 12.Based on the above facts as narrated, the learned senior counsel appearing on behalf of the petitioner has stated that, even before attachment by the Income Tax Department, the mortgage was in existence from 16.10.2002 onwards. However, it is clarified that the mortgage was registered between the petitioner and M/s.NEPC Agro Foods Ltd. on 11.12.1998 and the said mortgage was reflected in the encumbrance certificate also. Thus the petitioner bank holds priority over the charge and therefore the impugned order passed by the respondent is null and void.

# 13.The learned senior counsel for the petitioner strenuously contended that the actions of the Income Tax Department is absolutely untenable and not in consonance with the terms of priority as contemplated under the SARFAESI Act and Debt Recovery Tribunal Act. The learned senior counsel made a submission that M/s.NEPC Agro Foods Limited is an independent entity and absolutely unconnected with M/s.NEPC India Limited, who was the income tax defaulter as per the respondent. Thus the mortgage between the petitioner and the M/s.NEPC Agro Foods Limited is no way responsible for the income tax arrears due to the Department. The subject property mortgaged belongs to the M/s.NEPC Agro Foods Limited which is a separate entity and a company registered and therefore, the very initiation of proceedings under the Income Tax Act is untenable. The learned senior counsel in support of the said contention cited the judgments wherein the priority of the mortgage was upheld. The learned senior counsel cited the judgment of the Hon'ble Full Bench of this Court dated 10.11.2016 in W.P.No.2675 of 2011 [Assistant Commissioner (CT), Anna Salai-III Assessment Circle vs. The Indian Overseas Bank], wherein the Hon'ble Full Bench made an observation as under: 

• “2.We are of the view that if there was at all any doubt, the same stands resolved by view of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016, Section 41 of the same seeking to introduce Section 31B in the Principal Act, Which reads as under:- “31B. Notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority. Explanation:-for the purposes of this Section, it is hereby clarified that on or after the commencement of the insolvency and bankruptcy Code, 2016, in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower, priority to secured creditors in payment of debt shall be subject to the provisions of that code.”

• 3.There is, thus, no doubt that the rights of a secured creditor to realise secured debts due and payable by sale of assets over which security interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority. This Section introduced in the Central Act is with “notwithstanding” clause and has come into force from 01.09.2016.

• 4.The law having now come into force, naturally it would govern the rights of the parties in respect of even a lis pending.

• 5.The aforesaid would, thus, answer question (a) in favour of the financial institution, which is a secured creditor having the benefit of the mortgaged property. 

• 6.In so far as question (b) is concerned, the same is stated to relate only to auction sales, which may be carried out in pursuance to the rights exercised by the secured creditor having a mortgage of the property. This  aspect is also covered by the introduction of Section 31B, as it includes “secured debts due and payable to them by sale of assets over which security interest is created.

• 7.we, thus, answer the aforesaid reference accordingly.”

# 19. Under these circumstances, this Court is bound to examine the scope of Section 281 of the Income Tax Act as well as the priority conferred in favour of the Bank under the provisions of the SARFAESI Act and Debt Recovery Tribunal Act. The principles settled in the case of Corporation Bank vs. The Commissioner, Income Tax Department and others in W.P.No.27409 of 2019 dated 21.04.2012 is not in dispute and this Court is bound to consider the facts circumstances independently and the scope of the relevant provisions with reference to the provisions of the Income Tax Act.

“ANALYSIS:

# 30. Let us now consider the scope of Section 281 of the Income Tax Act. Chapter XXIII Section 281 of the Income Tax Act contemplates certain transfers to be void. Sub-clause (1) enumerates that “where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under rule 2 of the Second Schedule, any assessee creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of, any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding or otherwise”. A close reading of the above provision would reveal that where during the pendency of any proceedings under this Act or after the completion thereof, but before service of notice under rule 2 of the Second Schedule, if any charge is created by an assessee in favour of any other person shall be void as against any claim in respect of any tax or any other some payable by the assessee. Therefore, it is unambiguous that, during pendency of the proceedings if any charge is created, then such charge created by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever shall be void.

# 31. Schedule II Rule 11 of the Income Tax Act which contemplates investigation by Tax Recovery Officer. Sub-Clause (1) to Rule 11 states that “where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection”.

# 32. Sub-clauses (5) and (6) to Rule 11 of the Income Tax Act reads as under: (5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim. (6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject, to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive.

# 33. A perusal of the entire Rule would reveal that it is not an appeal or Revision. It is an investigation by the Tax Recovery Officer, which is contemplated. Therefore, any third person if involved in such transfer of property, which is declared as void under Section 281 of the Income Tax Act may submit an application for investigation by Tax Recovery Officer. Therefore, the statute does not assume that every third person is liable under the Income Tax Act. Schedule II Rule 11 of the Income Tax Act is a beneficial provision in respect of the person, who was otherwise cheated by any of the defaulter of tax arrears, who in turn can submit an application for further investigation in order to cull out the truth or genuinity with reference to the transactions or transfers. Therefore, the Tax Recovery Officer during the pendency found that the charge created in favour of the petitioner Bank is valid, then he can pass appropriate orders withdrawing the attachment made under the provisions of the Act. If the Tax Recovery Officer is of an opinion that the attachment made under the provisions of the Act was prior to the mortgage or otherwise, then he can pass appropriate orders confirming the attachment. However, the said Rule is not relatable to declaration or in the form of an appeal by any third person. It is only an enabling provision for effective adjudication of the actual facts and to find out the genuinity of certain transfers made during the pendency of the Income tax proceedings and with reference to the provision under Section 281 of the Income Tax Act.

# 34. Looking into the provisions of the SARFAESI Act, more specifically, Section 26E, which contemplates priority to secured creditors which reads that “notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the debts due to any Secured Creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government of State Government or local authority”.

# 35. Let us now consider Section 31B of the Recovery of Debts and Bankruptcy Act, 1993 and the said section Section 31B was inserted by Act 44 of 2016 with effect from 01.09.2016. The said provision also deals with priority to secured creditors, which reads that “notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government  dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority”.

# 36. It is necessary to consider the conflicting provisions of the Income Tax Act, SARFAESI Act and Recovery of Debts and Bankruptcy Act, 1993.

# 37. On the one hand, the Income Tax Act states that, where during the pendency of any proceedings under the Income Tax Act or after completion thereof, any assessee creates a charge on or parts with the possession by way of mortgage, sale, etc. Shall be void against any claim in respect of any tax. So also, the SARFAESI Act states that Section 26E contemplates that the secured creditors shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government of State Government or local authority. Therefore, equal weightage is given in respect of the secured creditors. So also Section 31B of Recovery of Debts and Bankruptcy Act, 1993 states that sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority.

# 38. Thus, conflicting provisions in these three independent statutes are creating heart burning issues between the secured creditors as well as the Tax Department. Some of the decisions are in favour of the Tax Department and some of the decisions are in favour of the Banks. With reference to Section 26E of the SARFAESI Act and Section 31B of the Recovery of Debts and Bankruptcy Act, 1993, judgments are given in favour of the Banks in view of the fact that the said provisions contemplates priority over the Government dues is to be given to the Banks. The tenor of Section 281 of the Income Tax Act which contemplates that any such transaction made during the pendency of any proceedings under the Income Tax Act shall be void. Thus, the understanding would be that if the proceedings under the Income Tax Act are pending at the time of creating mortgage, sale, gift, etc., then Section 281 of the Income Tax Act would be pressed into operation. The next question is at the time of creation of mortgage, sale, gift etc., the Income Tax Proceedings are pending as contemplated under Section 281 of the Income Tax Act, such transactions became void. Thus, it is unambiguous that the transactions or transfers made during the pendency of the Income tax proceedings are void. This being the purposive interpretation to be adopted, all transfers, mortgages etc., made during the pendency of the Income tax proceedings shall became void under Section 281 of the Income Tax Act. Once Section 281 of the Income Tax Act was pressed into service and the transactions or transfers became void, any mortgage, transfer etc., thereafter would be of no validity. In other words, the transfer or transactions made against the void transactions under the Income Tax Act are invalid in the eye of law. Therefore, even before invoking the provisions of the SARFAESI Act and DRT Act, Section 281 of the Income Tax Act intervenes and declares the transactions or transfers as void, if any such transactions or transfers are made during the pendency of the Income Tax proceedings. In such circumstances, invoking the provisions of the SARFAESI Act or DRT Act for the purpose of claiming priority would not arise at all. Law expects that the parties to be prudent and careful. Before mortgage, transfer or transactions, an enquiry is required by the respective parties as the buyer must beware (caveat emptor) of the encumbrances or the statutory implications or the genuinity of the title etc., Thus, the principles of caveat emptor would be applicable in such circumstances, where a transactions or transfers are made during the pendency of the Income tax proceedings. In such cases, the Income tax proceedings are known only to the tax defaulter and not to the third party purchaser or the mortgagee Bank or otherwise. Thus, the void transfers or transactions made during the pendency of the Income tax proceedings cannot be the subject matter for any mortgage or further transfers or transactions etc., This being the possible perceptions, the Courts are bound to consider, which transaction will prevail over and which Act would be applicable with reference to the facts and circumstances.

# 39. More elaborately the facts at the first instance to be considered and then the application of law which is to be applied at the first instance also to be considered. For instance in the case where the income tax proceedings are pending under the Income Tax Act and if a mortgage is entered into by the tax defaulter with any Bank, then it is the duty of the Bank to ensure that no other proceedings are pending and it is the duty of the person who is borrowing loan to inform the same to the Bankers. Under these circumstances, the Income Tax Department is alien to the transaction of mortgage between the bank and the tax defaulter and therefore, the Act will automatically come to the rescue of the Income Tax Department declaring such transfers as void under Section 281 of the Income Tax Act.

# 40. Where the Bank entered into a mortgage well before the pendency of proceedings under the Income Tax Act, then Section 26E of the SARFAESI Act would be applicable and in such circumstances, the Bank will hold priority over all other claim including the Government dues. Even in such circumstances, this Court has to consider the other principles which all are to be followed in such cases. Admittedly, the SARFAESI Act and Recovery of Debts and Bunkruptcy Act, 1993 provides priority to the secured creditors and the Income Tax Act provides priority to the tax arrears to be recovered. Under these circumstances, this Court is inclined to consider the common law Doctrine of priority of crown debts.

# 41. The “doctrine of constitutional priority” will have precedence over the other priorities. If the priority clause is provided under various enactments, the question arises as to which priority is to be held precedence over the other priorities. The test of traceability and recognition under the constitutional provisions would be the proper procedure to form an opinion.

# 42. In the present scenario, the SARFAESI Act and the DRT Act provides priority to secured creditors, i.e. the banks hold priority. The Income Tax Act contemplates any such mortgage or sale during the pendency of any proceedings under the Income Tax Act shall be void. Thus, this Court has to test the supremacy on the basis of the constitutional recognition, which is supreme than the statutes enacted under the constitution. The taxation laws are constitutionally recognised with reference to the sovereignty and the policies of the Government. Thus the supremacy of the Constitution overtakes the statutes enacted and such enactments constitutionally recognised directly takes precedence over the other statutes.

# 43. The principles of ‘doctrine of constitutional priority’ is to be defined as, in the event of the similar provisions of priority under various enactments, then the statute which is recognised directly by the Constitution for the purpose of upholding the sovereignty and integrity of the Nation is to be considered as holding precedence over the other statutes providing priority.

# 44. The Constitutional Bench of the Hon’ble Supreme Court of India in the case of Builders Supply Corporation vs. Union of India [1965 AIR 1061] considered the principles laid down in the case of Kaka Mohamed Ghouse Sahib and Co. vs. United Commercial Syndicate and others [(1886) ILR 7 Mad. 434], wherein the Madras High Court has held that it is a settled principle of constitutional law that as between creditors of the same rank the Government is entitled to priority and the republican character of the Constitution of India has not abrogated this general doctrine of priority of State debts. In dealing with this question, Justice Ramamurti has referred to the relevant decisions in relation to the arrears of income tax due to the Government and has pointed out there is a consensus of judicial opinion on the question that the arrears of tax due to the State can claim priority over private debts. This position has not been seriously disputed.

# 45.Similarly, the basic justification for the claim of priority made by the Income Tax Department in the present case rests on the well recognised principle that the State is entitled to raise money by taxation, because unless adequate revenue is received by the State, it would not be able to function as sovereign Government at all. It is essential that as a sovereign the State should be able to discharge its primary governmental functions and in order to able to discharge such functions efficiently, it must be in possession of necessary funds and this consideration emphasizes the necessity and the wisdom of conceding to the State, the right to claim priority in respect of its tax dues.

# 46. In this context, Part XII of the Constitution of India, more specifically, Article 265 which states that tax not to be imposed save by authority of law; Article 266 speaks about Consolidated funds and public accounts of India and the States; Article 267 states Contingency fund; Article 268 states Duties levied by the Union but collected and appropriated by the States; Article 268A denotes service tax levied by Union and collected and appropriated by the Union and the States; Article 269 states taxes levied and collected by the Union but assigned to the States; Article 269A denotes levy and collection of goods and service tax in course of inter-state trade or commerce and Article 270 states that taxes levied and distributed between the Union and the States. The chapter deals with the taxes and its constitutional importance are to be considered by this Court. Undoubtedly, tax is the backbone of our Nation’s economy and it holds top priority. In this context, the tax collected goes to the welfare of the people in general, however the mortgage or sale transaction between the bank and the tax defaulter can be at no circumstances be compared with the constitutional importance of tax being collected from the people for the purpose of achieving the constitutional goals and perspectives. Therefore, the provisions of various Acts if there are conflicting provisions or grant of priority to various institutions, then the Constitution of India will be the guiding factor to form an opinion and confer priority. The nature of transaction, the implications, Constitutional importance and the other principles enunciated under the Constitution of India are the principal factors to be considered to form an opinion that, which claim shall be given priority over the other claims as various statutes enacted by the Parliament gives priority to such institutions irrespective of the fact that the other Acts are also providing similar priority to other institutions.

# 47. In support of the said observation, this Court would like to draw the attention with reference to the judgment of the Three Judges Bench of the Hon’ble Supreme Court of India in the case of Central Bank of India vs. State of Kerala and others [Civil Appeal No.95 of 2005 dated 27.02.2009], wherein the Apex Court considered the provisions of the DRT Act and SARFAESI Act and the following observations are made:

“33. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give overriding effect to the provisions of those Acts only if there is anything inconsistent contained in any other law or instrument having effect by virtue of any other law. In other words, if there is no provision in the other enactments which are inconsistent with the DRT Act or Securitisation Act, the provisions contained in those Acts cannot override other legislations. Section 38C of the Bombay Act and Section 26B of the Kerala Act also contain non obstante clauses and give statutory recognition to the priority of State’s charge over other debts, which was recognized by Indian High Courts even before 1950. In other words, these sections and similar provisions contained in other State legislations not only create first charge on the property of the dealer or any other person liable to pay sales tax, etc. but also give them overriding effect over other laws. In Builders Supply Corporation v. Union of India [(1965) 2 SCR 289], the Constitution Bench considered the question whether tax payable to the Union of India has priority over other debts. After making a reference to the judgments of the Bombay High Court in Bank of India v. John Bowman and Ors., [AIR 1955 Bom. 305], Madras High Court in Kaka Mohammad Ghouse Sahib & Co. v. United Commercial Syndicate and others [(1963) 49 I.T.R. 25] and Manickam Chettiar v. Income-tax Officer, Madura, [(1938) 6 ITR 180], the Court held;

(i) “The Common Law doctrine of the priority of Crown debts had a wide sweep but the question in the present appeal was the narrow one whether the Union of India was entitled to claim that the recovery of the amount of tax due to it from a citizen must take precedence and priority over unsecured debts due from the said citizen to his other private creditors. The weight of authority in India was strongly in support of the priority of tax dues. 

(ii) The Common Law doctrine on which the Union of India based its claim in the present proceedings had been applied and upheld in that part of India which was known as `British India’ prior to the Constitution. The rules of Common Law relating to substantive rights which had been adopted by this country and enforced by judicial decisions, amount to `law in force’ in the territory of India at the relevant time within the meaning of Art. 372(1). In that view of the matter, the contention of the appellant that after the Constitution was adopted the position of the Union of India in regard to its claim for priority in the present proceedings had been alerted could not be upheld.

(iii) The basic justification for the claim for priority of Government debts rests on the well-recognised principle that the State is entitled to raise money by taxation, otherwise it will not be able to function as a sovereign government at all. This consideration emphasizes the necessity and wisdom of conceding to the State the right to claim priority in respect of its tax dues.” 34. In State Bank of Bikaner and Jaipur v. National Iron and Steel Rolling Corporation and others [(1995) 2 SCC 19], the Court again recognized the priority of the State’s statutory first charge under Section 11-AAAA of the Rajasthan Sales Tax Act, 1954 vis-`-vis claim of the bank to recover its dues from the borrower. 35. In Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and others [(2000) 5 SCC 694], the Court reviewed case law on the subject and observed: “The principle of priority of government debts is founded on the rule of necessity and of public policy. The basic justification for the claim for priority of State debts rests on the well-recognised principle that the State is entitled to raise money by taxation because unless adequate revenue is received by the State, it would not be able to function as a sovereign Government at all. It is essential that as a sovereign, the State should be able to discharge its primary governmental functions and in order to be able to discharge such functions efficiently, it must be in possession of necessary funds and this consideration emphasizes the necessity and the wisdom of conceding to the State, the right to claim priority in respect of its tax dues (see Builders Supply Corpn.). In the same case the Constitution Bench has noticed a consensus of judicial opinion that the arrears of tax due to the State can claim priority over private debts and that this rule of common law amounts to law in force in the territory of British India at the relevant time within the meaning of Article 372(1) of the Constitution of India and therefore continues to be in force thereafter. On the very principle on which the rule is founded, the priority would be available only to such debts as are incurred by the subjects of the Crown by reference to the State’s sovereign power of compulsory exaction and would not extend to charges for commercial services or obligation incurred by the subjects to the State pursuant to commercial transactions. Having reviewed the available judicial pronouncements their Lordships have summed up the law as under:

1. There is a consensus of judicial opinion that the arrears of tax due to the State can claim priority over private debts.

2. The common law doctrine about priority of Crown debts which was recognised by Indian High Courts prior to 1950 constitutes “law in force” within the meaning of Article 372(1) and continues to be in force.

3. The basic justification for the claim for priority of State debts is the rule of necessity and the wisdom of conceding to the State the right to claim priority in respect of its tax dues.

4. The doctrine may not apply in respect of debts due to the State if they are contracted by citizens in relation to commercial activities which may be undertaken by the State for achieving socio-economic good. In other words, where the welfare State enters into commercial fields which cannot be regarded as an essential and integral part of the basic government functions of the State and seeks to recover debts from its debtors arising out of such commercial activities the applicability of the doctrine of priority shall be open for consideration.”

# 48. One of the principles, which is impressive in the judgment cited supra, is that the basic justification for the claim for priority of Government dues rests on the well recognized principles that the State is entitled to raise money by taxation otherwise it will not be able to function as sovereign Government at all. This consideration emphasizes the necessity and wisdom of conceding to the State, the right to claim priority in respect of its tax dues. The importance of the above reading is to be considered regarding the present facts and circumstances.# 49. Let us consider the dispute raised in the present case. The Income Tax Department in their counter affidavit had stated that the assessee defaulter is in arrears to the tune of Rs.34,52,12,985/-. The demands were raised by the Income Tax Department prior to 31.03.1999, the date of mortgage to the petitioner bank. The Income Tax Department in other words claims that the proceedings under the Income Tax Act was pending even before the date of mortgage. The petitioner relying on the encumbrance certificate issued by the Registration Department of the State contends that the attachment is made after the mortgage by the petitioner bank. However, Section 281 of the Income Tax Act unambiguously states that during the pendency of any proceedings under the Income Tax Act. Thus, pendency of any proceedings is sufficient to treat any other transfer/mortgage as void.

# 50. Thus, the mortgages, transactions or transfers are made during the pendency of the Income Tax proceedings, then all such transfers, mortgages, transactions are void under Section 281 of the Income Tax Act and any such mortgage or attachment made by the Bank during the pendency of the Income tax proceedings, cannot be a ground to claim priority based on the provisions of the SARFAESI Act or DRT Act.

# 51. The disputed factors cannot be adjudicated by the High Court under Article 226 of the Constitution of India and it is for the petitioner to establish the details regarding the mortgage and the pendency of Income tax proceedings under the Income Tax Act. It is for the petitioners to produce the documents in original and adjudicate the same in the manner prescribed under Schedule II Rule 11 of the Income Tax Act. Thus, it would be improper to form an opinion regarding the disputed facts between the parties to the lis in the present case, which requires adjudication of facts based on the documents and evidences. High Court cannot conclude the disputed facts merely based on the affidavits and counter affidavits filed by the parties in a writ proceedings. However, this Court cannot conclude that the petitioner Bank holds priority over the Income tax arrears due to the Income Tax Department. The principles elaborately considered and discussed in the aforementioned paragraph would highlight the constitutional importance, which all are to be considered to grant priority to the institutions. Thus, this Court is inclined to pass the following orders: (1) The relief as such sought for in the present writ petition stands rejected. (2) The petitioner is at liberty to approach the Tax Recovery Officer by filing an appropriate application under Schedule II, Rule 11 of the Income Tax Act. In the event of filing any such application, the Tax Recovery Officer is directed to investigate the same with reference to the original documents and pass appropriate orders as expeditiously as possible.

# 52. With these directions, the writ petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.”

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