Bombay High Court
State Bank Of India, Nagpur ... vs Govt. Of Maharashtra Through Its ... on 26 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6844 OF 2015
State Bank of India, a Corporation
constituted under the State Bank of
India Act, 1955 and having one of
its Branch Office amongst others known
as Hingna Industrial Estate Branch,
M.I.D.C. Area, Plot No. X-43,
Nagpur-440016, Phone No.07104
236700, 237034, 237525, 232071
E-mail : [email protected] acting
through one of its Asstt. General
Manager having authority to file
the application which includes the
authority to verify and sign the application. ... Petitioner
- Versus -
1) Government of Maharashtra, through
its Sales Tax Department, VAT-C-022,
Recovery Branch, 1st Floor, Vikrikar
Bhavan, Civil Lines, Nagpur, acting
through its Sales Tax Officer.
2) VICTRANS ENGINEERS, having its Unit
at C-62, 63, 59, MIDC, Hingna,
Nagpur 440028, through its partners
Shri Swapan Kumar Dhirendranath Dutta
and Shri Saikat Swapan Kumar Dutta,
both residents of Plot No.16, The
Nagpur Uni. Co-op Housing Society Ltd.,
Ward No.75, Vidya Nagari, Nagpur.
3) The State of Maharashtra, through its
Secretary, Ministry of Finance,
Mantralaya, Mumbai -32. ... Respondents
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Shri M. Anilkumar, Advocate for petitioner.
Shri A.V. Palshikar, Assistant Government Pleader for respondent nos.1
and 3.
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CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATED : SEPTEMBER 26, 2016
ORAL JUDGMENT (PER SMT. VASANTI A NAIK
, J.) :
Rule. The rule is made returnable forthwith. The writ
petition is heard finally at the stage of admission with the consent of the
learned Counsel for the parties.
By this writ petition, the petitioner challenges the auction
notice dated 7/11/2015 published by the Sales Tax Officer - Value Added
Tax Officer, Nagpur thereby putting the personal properties of the
partners of the respondent no.2 for sale.
The petitioner State Bank of India had advanced loan to the
respondent no.2 firm of which Shri Swapan Kumar Dutta and Shri Saikat
Dutta are the partners. Shri Swapan Kumar Dutta and Shri Saikat Dutta
are guarantors to the loan transaction. The respondent no.2 firm had
defaulted in making the payment of value added tax dues and hence, the
Sales Tax Officer - Value Added Tax Officer has sought to sell the
immovable properties of the respondent no.2 firm as also the personal
properties of Shri Swapan Kumar Dutta and Shri Saikat Dutta, at serial
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nos. 2 to 4 in the auction notice, for sale. According to the petitioner, the
properties at serial nos.2 to 4 are the secured assets available with the
petitioner Bank and since Shri Swapan Kumar Dutta and Shri Saikat Dutta
are not the defaulters in respect of the value added tax, their personal
properties could not be put to sale by the impugned auction notice.
Shri Palshikar, the learned Assistant Government Pleader
appearing for the respondent nos.1 and 3, fairly admits that no value
added tax dues are payable by Shri Swapan Kumar Dutta and Shri Saikat
Dutta, but the same are payable by the respondent no.2 firm. It is stated
that in view of the provisions of Section 46 of the Maharashtra Value
Added Tax Act, 2002, the partners of the firm would be jointly and
severally liable to pay the tax. It is, however, admitted that a notice was
not served on Shri Swapan Kumar Dutta and Shri Saikat Dutta before
putting their properties for sale vide impugned auction notice.
In the circumstances of the case, the properties mentioned at
serial nos.2 to 4, that personally belong to Shri Swapan Kumar Dutta and
Shri Saikat Dutta are liable to be deleted from the impugned auction
notice. It appears that the personal properties of Shri Swapan Kumar
Dutta and Shri Saikat Dutta are mortgaged with the petitioner Bank as
they are the guarantors for the transaction of money advanced by the
State Bank of India to the respondent no.2 towards loan. If the properties
of Shri Swapan Kumar Dutta and Shri Saikat Dutta are put to sale
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without following the due procedure, severe prejudice would be caused to
the petitioner Bank as the petitioner Bank would not be able to utilise the
secured assets towards recovery of dues. As admittedly no notice is
served upon Shri Swapan Kumar Dutta and Shri Saikat Dutta before their
properties are put to sale by the auction notice, the auction notice is liable
to be set aside, insofar as the properties at serial nos.2 to 4 are concerned.
Since it is the case of the petitioner that the property at serial
no.1 is partially sold and since the petitioner claims to be entitled to the
benefit of Section 31-B of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, without rendering any finding on the
question of entitlement of the petitioner to seek the benefit, we leave it to
the petitioner to take up appropriate steps for securing the benefit under
the said provision.
Hence, for the reasons recorded hereinabove and also for the
reasons recorded in the judgment dated 3/8/2016 in Writ Petition
No.669/2016, the writ petition is partly allowed. The impugned auction
notice is hereby quashed and set aside insofar as properties at serial nos.2
to 4 are concerned.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
khj
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CERTIFICATE
I certify that this judgment uploaded is a true and correct
copy of the original signed judgment.
Uploaded by : Uploaded on :
Kamal H. Jeswani 29/9/2016
Private Secretary
