Canara Bank Vs Deputy Commissioner of Commercial Tax

CANARA BANK P J EXTENSION BRANCH MINK COMPLEX, 34 2A 1ST FLOOR, PB 228 AKKAMAHADEVI ROAD 2ND MAIN, P J EXTN, DAVANAGERE- 577 002 REPRESENTED BY ITS MANAGER MR. SUDHIR BABU.M.R

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…PETITIONER

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Digitally signed by KAVYA R Location: High court of Karnataka

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(BY SRI. RUKKOJI RAO H S., ADVOCATE)

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AND:

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DEPUTY COMMISSIONER OF COMMERCIAL TAX, VANIJYA THERIGE BHAVANA C K PURA, KELEKOTA CHITRADURGA- 577 501

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RAJU CHILUKURI AGED MAJOR, S/O NAGESHWAR RAO

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NC: 2026:KHC:423 CRL.RP No. 592 of 2022

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HC-KAR

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R/A NO.361, 1^ST FLOOR, 4^TH MAIN, 9^TH CROSS, BEHIND VISHWESHWARAIAH PARK P J EXTN., DAVANAGERE- 577 004.

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…RESPONDENTS

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(BY SRI. RAHUL RAI, HCGP FOR R1/STATE; V/O DTD 28.03.25 NOTICE TO R2 IS D/W)

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THIS CRL.RP IS FILED U/S.42(11) OF THE KARNATAKA VALUE ADDED TAX ACT, 2003 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO QUASH THE IMPUGNED ORDER DATED 08.10.2021 ISSUED BY THE J.M.F.C., DAVANAGERE IN C.C.NO.3430/2021 PRODUCED AT ANNEXURE-A., AND ETC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Petitioner bank is before this Court in this Criminal revision petition filed under Section 42(11) of the Karnataka Value Added Tax, 2003 read with Section 397 and 401 of Cr.PC with the prayer to set aside the order dated 08.10.2021 passed in C.C.No.3430/2021 by the Court of JMFC 1, Davangere.

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NC: 2026:KHC:423 CRL.RP No. 592 of 2022

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HC-KAR

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Heard the learned counsel for the parties.

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Facts leading to filing of this Criminal revision petition narrated briefly are, respondent No.2 has availed loan of Rs.2.00 crores from the petitioner bank and had mortgage the scheduled properties as security for the loan borrowed. It appears that subsequently respondent No.2 had availed further financial assistance from the petitioner bank and had executed documents depositing title deeds of the schedule property. Since respondent No.2 had failed to repay the loan borrowed, petitioner bank had initiated recovery proceedings against him in O.A.No.107/2018 and O.A.No.108/2018 and both the O.A's were allowed by the Debt Recovery Tribunal. Subsequently, the recovery officer of the Tribunal had issued recovery certificates in O.A.No.107/2018 as well as in O.A.No.108/2018 and steps were taken by the bank to bring the schedule property for sale, since respondent No.2 had failed to pay the amount covered under the recovery certificates issued in O.A.No.107/2018 and O.A.No.108/2018. In the auction

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HC-KAR

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sale of the schedule property that was held by the petitioner bank, one Mr.Ramesh was the successful bidder. It appears that in the meanwhile respondent No.1 had filed an application under Section 42(9) of the Karnataka Value Added Tax Act, 2003 before the Court of JMFC-1, Davanagere in C.C.No.3430/2021 for recovery of commercial tax of Rs.35,29,182/- payable by respondent No.2 to respondent No.1 and on 08.10.2021 the learned Magistrate had created charge on the schedule property to the tune of Rs.35,29,182/- in favour of respondent No.1. Aggrieved by the said order, petitioner bank is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that in view of Section 26E of the SARFAESI Act, 2002, the petitioner who is a secured creditor has priority claim over the schedule property. He submits that as on the date on which the order impugned was passed, the schedule property was already brought for sale by the petitioner

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NC: 2026:KHC:423 CRL.RP No. 592 of 2022

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HC-KAR

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bank. Therefore, the impugned order cannot be sustained. In support of his arguments, he has placed reliance on the judgment of this Court reported in AIR 2022 KARNATAKA 128 in the case of VPP AGRI TECH PRIVATE LIMITED VS. STATE OF KARNATAKA AND

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OTHERS .

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Per contra , learned HCGP has argued in support

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of the order impugned.

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Undisputed facts of the present case are that the schedule property was mortgaged by respondent No.2 in favour of the petitioner bank for availing two separate loans and since the loans borrowed by respondent No.2 was not repaid, the petitioner bank had initiated two separate recovery proceedings against him in O.A.No.107/2018 and O.A.No.108/2018 which were allowed on 15.12.2018. Subsequently, recovery certificates have been also issued by the Competent Officer in O.A.No.107/2018 and in O.A.No.108/2018. Since

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HC-KAR

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respondent No.2 had failed to pay the amount covered under the recovery certificates issued, the petitioner bank had taken steps for bringing the schedule properties for sale and auction notification was accordingly published on 22.09.2021 and sale of the schedule property was held on 29.10.2021. It appears that the recovery officer of that Debt Recovery Tribunal has also issued a sale certificate on 03.12.2021 in favour of the successful auction purchaser namely Mr.Ramesh and thereby confirmed the sale of the schedule property.

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Proceedings under the Karnataka Value Added Tax, 2003 was initiated by the first respondent against the respondent No.2 on 27.09.2021 and in the said proceedings namely C.C.No.3430/2021, the order impugned has been passed by the learned Magistrate on 08.10.2021, creating charge in favour of respondent No.1 over the schedule property to the tune of Rs.35,29,182/which is the amount respondent No.2 is liable to pay to

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HC-KAR

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respondent No.1 towards commercial tax dues. Section 26E of the SARFAESI Act, 2002, reads as follows:

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"Section 26E: Priority to secured creditors : 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 or State Government or local authority."

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From a reading of the aforesaid provision of law,

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it is very clear that the secured creditor has priority over all other debts and all revenue, taxes, cesses that are payable to the Central Government or State Government or Local Authority, notwithstanding anything contained in any other law. Petitioner is a secured creditor and the schedule property was mortgaged by respondent No.2 as security towards the loan borrowed by him. Recovery proceedings of the loan borrowed by respondent No.2 was initiated by the petitioner bank in the year 2018 itself and the schedule properties was notified for sale, much prior to

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HC-KAR

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the order impugned is passed. In view of Section 26E of the SARFAESI Act, 2002, since the petitioner who is the secured creditor has priority over all other claims, inclusive of the claim made by respondent No.1 towards commercial tax due, the Trial Court was not justified in passing the order impugned. Under similar circumstances, this Court in the case of VPP Agriculture Private Limited (supra) in paragraph number 15 and 16 has observed as follows:

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15. In the present case, it is clear that the charge that would have a priority is that of the bank as it is prior in point of time and also in light of Section 26E of the SARFAESI Act.

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16. It must be noted that as on date, the State not having enforced its attachment under the provisions of KVAT Act, Section 26E would be applicable and accordingly, the rights of secured creditors would rank higher and would over-ride the charge of the State that has been created subsequently. Accordingly, the legal position being clear as also the fact that the charge created under the SARFAESI Act was prior in point of time, claim of the State by virtue of its attachment order would have to give way to the charge of the bank.

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HC-KAR

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Accordingly, the attachment order made by the State as regards to the assets which are subject matter of the Sale Certificate of the petitioner is set aside. Insofar as transfer of revenue entries are concerned, in light of the order passed respondents are to take suitable action as per procedure applicable under law."

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