Bhaurao Chavan Sahakari Sakhar ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 5330 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      WRIT PETITION NO.2220 OF 2017 


Bhaurao Chavan Sahakari Sakhar
Karkhana Ltd., 
Laxmi Nagar, Degaon-Yelegaon,
Tq. Ardhapur, District Nanded
through its Secretary,
Mr. Gajanan Balwantrao Sabnis,
Age : 44 years, Occu. Service,
R/o as above                                          PETITIONER 

       VERSUS

1.     The State of Maharashtra,
       through its Secretary,
       Finance Department,
       Mantralaya, Mumbai

2.     Assistant Sales Tax Commissioner,
       Vikrikar Bhavan, Opp. Railway Station,
       Nanded, District Nanded

3.     Maharashtra State Cooperative Bank Ltd.
       Pay Office, Nanded,
       180, Vasant Nagar, 
       Nanded - 431 605
       through its Joint Manager

4.     Hutatma Jayantrao Patil Sahakari
       Sakhar Karkhana Ltd.,
       Surya Nagar, Hadsani, 
       Tq. Hadgaon, District Nanded,
       through its 
       Chairman/Managing Director                     RESPONDENTS

                         ----
Mr. P.M. Shah, Senior Advocate instructed by and with
Mr. N.B. Suryawanshi, Advocate for the Petitioner
Mr. S.G. Karlekar, A.G.P. for the respondent/State
Mr. D.M. Shinde, Advocate for respondent No. 4
                         ----




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                                    CORAM :    S.C. DHARMADHIKARI AND
                                               SANGITRAO S. PATIL, JJ.

                         JUDGMENT RESERVED ON  : 20th JULY, 2017
                         JUDGMENT PRONOUNCED ON : 1st AUGUST, 2017



JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

Rule, returnable forthwith. With the consent of

the learned counsel for the parties and the learned

A.G.P., heard finally.

2. The petitioner has challenged the

communications dated 29th November, 2016 and 23rd January,

2017, issued by respondent No. 2 seeking recovery of

sugarcane purchase tax and arrears of sales tax,

amounting to Rs.7,04,10,624/-, from the petitioner,

which were liable to be recovered from respondent No. 4.

3. The petitioner is a Sugar Factory, registered

under the Maharashtra Cooperative Societies Act, 1960

("MCS Act", for short) and is engaged in the business of

manufacturing sugar by crushing sugarcane. Respondent

No. 4 also is a Sugar Factory registered under the

provisions of the MCS Act. It was engaged in the same

business. Respondent No. 1 is the State of Maharashtra

represented through its Secretary, Finance Department,

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respondent No. 2 is the Assistant Sales Tax

Commissioner, while respondent No. 3 is the Maharashtra

Cooperative Bank Ltd.

4. The factual matrix of the matter is that

respondent No. 4, while carrying on the business of

manufacturing of sugar by crushing sugarcane, obtained

financial assistance from respondent No. 3 Bank, which

is a secured creditor. Respondent No. 4 had mortgaged

its immovable property with respondent No. 3 and created

an interest in favour of respondent No. 3 within the

meaning of the term "secured interest" under the

Securitization and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002

("SARFAESI Act", for short). Respondent No. 4 stopped

its business of manufacturing sugar. Respondent No. 4

committed default in repaying the loan that was obtained

from respondent No.3. Therefore, by invoking the powers

under the SARFAESI Act, respondent No. 3 took possession

of the movable and immovable properties of respondent

No. 4 on 1st March, 2011. Respondent No. 3 called upon

respondent No.4 to clear off the outstanding dues.

However, respondent No.4 failed to do so. Respondent

No.3 then issued and published a tender notice on 16th

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January, 2012 for sale of movable and immovable

properties of respondent No.4 for recovery of the loan

amount with interest. The reserved price was fixed for

sale of the properties of respondent at Rs. 45.29

crores. These properties include the machinery as well

as the lands and building (hereinafter referred to as

"the secured assets") of respondent No. 4. As per the

terms of the tender notice, respondent No. 3 had offered

to sell the secured assets on "AS IS WHERE IS, AS IS

WHAT IS AND WHATEVER THERE IS" basis, which was without

any warranty, guarantee, assurance, undertaking or

representation of any kind whatsoever. The Authorised

Officer of respondent No.3 had clarified in clause 3 of

the tender notice that he did not take or assume any

responsibility for any shortfall of the movable or

immovable assets for procuring any permission, etc. or

for any dues, statutory or otherwise, of any authority

established by law and such dues, if any, would have to

be borne/paid by the purchaser. The last date of

submission of bids was 14th February, 2012. The date and

time of opening the bids was 11.00 a.m. on 16th

February, 2012.

5. The petitioner being interested in purchasing

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the secured assets of respondent No. 4, submitted its

offer on 14th February, 2012 to purchase the same for

Rs. 48.51 crores. The petitioner being the highest

bidder, its offer was accepted and the sale was

concluded in its favour. The sale certificate was duly

registered in accordance with law on 27th November,

2012. The actual physical possession of the secured

assets of respondent No. 4 was given to the petitioner

by respondent No. 3 on 22nd November, 2012.

6. Respondent No. 2 had addressed a communication

dated 6th March, 2012 to respondent No. 3 stating

therein that the amount of Rs. 7,04,10,624/- was due and

payable from respondent No. 4 towards sugarcane purchase

tax, Bombay sales tax and Central sales tax and asking

respondent No. 3 to treat this amount as the first

charge on the sale-proceeds of the secured assets of

respondent No. 4 proposed to be sold out and recover the

same. Respondent No. 3 replied that communication on

2nd February, 2013 and denied its liability to recover

any amount from the sale-proceeds of the secured assets

of respondent No. 4. Respondent No. 3 further informed

respondent No. 2 that the secured assets of respondent

No. 4 were seized under the provisions of the SARFAESI

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Act and sold out to the petitioner for Rs. 48.51 crores.

Thereafter, respondent No. 2 issued the impugned

communications to the petitioner for recovery of the

dues outstanding against respondent No. 4 to the tune of

Rs.7,04,10,624/- towards sugarcane purchase tax and

arrears of State Sales Tax and Central sales tax.

7. The learned Senior Counsel for the petitioner

submits that the petitioner has purchased the secured

assets of respondent No.4 and not the business interest.

Respondent No. 4 had already stopped its business of

manufacturing sugar by crushing sugarcane. The

petitioner did not purchase running business of

respondent No. 4. The amount due and payable from

respondent No. 4 towards sugarcane purchase tax and

arrears of State sales tax and Central sales tax, which

are not the dues against the secured assets, but against

the business of respondent No.4, cannot be recovered

from the petitioner. The learned Senior Counsel further

submits that the above referred dues outstanding against

respondent No. 4 were not made known to the petitioner

when the petitioner placed the bid for purchase of the

secured assets respondent No.4 on 14th February, 2012 or

even when the sale certificate was registered on 21th

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November, 2012. The charge of respondent No. 4 for the

said dues was not reflected in the Record of Rights of

the lands of respondent No. 4. The petitioner was not

having even a constructive notice of the said charge.

The petitioner is a bonafide purchaser of the secured

assets for valuable consideration, without notice of any

dues payable from respondent No.4 to respondent No.2 on

account of sugarcane purchase tax or arrears of sales

tax. Consequently, respondent No. 2 cannot recover the

said amount from the petitioner.

8. The Joint Commissioner, State Tax, Nanded

Division, Nanded filed affidavit-in-reply on behalf of

respondent Nos.1 and 2. Based on the averments made in

the said affidavit-in-reply, the learned A.G.P. submits

that as per the terms of the public notice, issued by

respondent No. 3 for auction sale of the secured assets

of respondent No. 4, it was made clear that the

purchaser would be liable to pay statutory dues

outstanding against respondent No. 4. Respondent No.2

had intimated respondent No. 3 about the amount to be

recovered from the sale-proceeds of the secured assets

of respondent No. 4 towards sugarcane purchase tax and

arrears of Bombay sales tax and Central sales tax vide

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letter dated 6th March, 2012. Respondent No. 2 further

informed the Talathi and the Circle Officer of Sajja

Hadsani, Taluka Hadgaon, District Nanded vide

communication dated 21st February, 2012 to record

charge/lien in the Record of Rights of the secured

assets of respondent No.4 for the above mentioned dues.

Accordingly, Mutation Entry No. 1747 was effected and

the charge was shown in the 7/12 extracts of the lands

of respondent No. 4. The learned A.G.P. submits that

the entries in the Record of Rights of the lands of

respondent No. 4 in respect of the charge for the amount

of Rs. 7,04,10,624/- would amount to constructive notice

to all the parties including the petitioner, who placed

bids in the auction sale of the secured assets.

Therefore, the petitioner cannot evade payment of the

said charges to respondent No.2. The learned A.G.P.

further submits that after getting the sale certificate

dated 27th November, 2012, the petitioner started its

business of manufacturing sugar in the immediate next

crushing season of 2013-14. Therefore, the petitioner

would be considered as the transferee of business

interest of respondent No. 4 and would be under an

obligation to clear the outstanding statutory dues

payable by respondent No. 4 to respondent No. 2. On

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these grounds, he submits that the Writ Petition may be

dismissed.

9. As stated above, the notice for sale of the

secured assets of respondent No. 4 was published in

"Daily Sakal" newspaper on 16th January, 2012. The last

date for submission of bids was 14th February, 2012. The

date of opening bids was 16th February, 2012. Since the

petitioner was the highest bidder, its bid was accepted

on 16th February, 2012. The tender notice and tender

document show that the Authorised Officer himself was

empowered to accept the bids and was not required to

obtain approval from any other Authority prior to

accepting the highest bid. Thus, the auction sale

practically was concluded on 16th February, 2012 itself

when the bid of the petitioner was accepted

unconditionally.

10. Respondent No. 2 seems to have moved the

Talathi and Circle Officer for placing the charge of the

dues outstanding against respondent NO. 4 towards the

sugarcane purchase tax and arrears of sales tax

amounting to Rs. 7,04,10,624/- for the first time vide

letter dated 21st February, 2012 (Exh-R1). Mutation

Entry No. 1747 showing charge of respondent No. 2

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against the secured lands was certified by the Circle

Officer on 15th August, 2012. After certification of

that Mutation Entry, the charge of respondent No.4 came

to be shown in the 7/12 extracts of the lands of

respondent No.4. The sale certificate was registered on

21st November, 2012. The 7/12 extracts of the lands -

subject matter of the sale were annexed to the sale

certificate. The charge of respondent No. 2 was not

shown in the said 7/12 extracts. In the circumstances,

the petitioner cannot be attributed with the knowledge

or notice, either actual or constructive, of the charge

of respondent No. 2 in respect of the amount due and

payable from respondent No. 4 towards sugarcane purchase

tax and arrears of sales tax when it placed the bid for

purchase of the secured assets on 16th February, 2012.

11. The learned Senior Counsel for the petitioner

cited the judgment in the case of Sherwood Resorts Pvt.

Ltd. and another Vs. State of Maharashtra and others

2015 SCC OnLine Bom. 5065. In that case, an attachment

order dated 29th April, 2013 (actually signed on 2nd

May, 2013), was passed by the Sales Tax Authorities

against the immovable property purchased by the

petitioners pursuant to an auction sale conducted by

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SICOM, secured creditor, under the provisions of the

SARFAESI Act.

12. It was the case of the petitioners that they

purchased the immovable property belonging to M/s Iccon

Oil and Specialities Ltd. (for short called as "Iccon

Oil Ltd.") for valuable consideration without any notice

of the alleged charge of the Sales Tax Authorities. The

sale notice was issued on 25th august, 2012 under the

SARFAESI Act, inviting offers in respect of the secured

assets on an "As is where is" and "As is what is" basis.

The petitioners being desirous of purchasing the said

secured assets, placed bid in the public auction held on

10th September, 2012. The offer of the petitioners came

to be accepted by SICOM. SICOM confirmed receipt of the

entire sale consideration on 1st April, 2013 and

requested the petitioners to proceed with the execution

of the sale certificate. It was the case of the

petitioners that prior to purchasing the secured assets,

they undertook a complete title due diligence and

obtained 7/12 extract in respect of the secured assets

which recorded the name of Iccon Oil Ltd. as the owner.

In the said 7/12 extract, no charge of the Sales Tax

Authorities was reflected at that time. Considering

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that 7/12 extract, the petitioners decided to bid for

the secured assets. When the petitioners could not

obtain registration of the sale certificate on account

of the excessive stamp duty demanded by the Registering

Authority, the petitioners again applied for and

obtained the latest 7/12 extract dated 9th January, 2014

in respect of the secured assets. At that time, they

were shocked and surprised to know that in that 7/12

extract, there was an additional entry showing charge of

Rs.2,77,72,073/- of the Sales Tax Authorities.

13. The petitioners therein contended that they had

bonafide purchased the secured assets by paying full

consideration to SICOM on 21st March, 2013, without

knowledge of the alleged encumbrance of the Sales Tax

Authorities. Therefore, they challenged the legality

and validity of the attachment order dated 29th April,

2013, issued by the Sales Tax Authorities.

14. Considering the facts and circumstances of the

case as well as the rival contentions of the learned

counsel for the contesting parties, it was observed in

paragraph No. 23 of the judgment that when the sale

notice was published on 25th August, 2012, inviting

offers in respect of the secured assets, the Sales Tax

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Authorities did not object to the sale of the secured

assets on the ground that they had a claim against Iccon

Oil Ltd. It was further observed that the petitioners

had obtained the 7/12 extract issued on 15th May,2012

prior to bidding for the secured property. It did not

reflect charge of the Sales Tax Authorities. Therefore,

the petitioners bonafide believed that the charge of

the Sales Tax Authorities, which was not reflected in

the 7/12 extract, was not there against the secured

assets and placed bid for the secured assets which was

accepted by SICOM on 15th March, 2013. The petitioners

made full payment of the sale consideration on 21st

March, 2013.

15. In the above background, in paragraph No. 28 of

the judgment, this Court referred to a decision of the

Hon'ble the Apex Court in the case of State of Karnataka

Vs. Shreyas Paper Mills Ltd. (2006) 1 SCC 615 and more

particularly, paragraph Nos. 18 to 21 thereof on the

issue of enforcement of charge, which read as under:-

"18. The next limb of Mr Hegde's arguments was that since Section 13(2)(i) of the KST Act creates a charge on the property of the defaulting company, the charge would continue

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on the properties, even if it changes hands by transfer.

19. While the expression "charge" is not defined by the KST Act, this concept is well known in property law and has been defined by Section 100 of the Transfer of Property Act, 1882 (hereinafter "the TP Act"). Here "charge" is defined as:

"100. Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property, and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge."

20. As the section itself unambiguously indicates, a charge may not be enforced against a transferee if she/he has had no notice of the same, unless by law, the requirement of such notice has been waived.

This position has long been accepted by this

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Court in Dattatreya Shanker Mote v. Anand

Chintaman Datar [(1974) 2 SCC 799, 811 (para

18)] and in Ahmedabad Municipal Corpn. of the City of Ahmedabad v. Haji Abdulgafur Haji Hussenbhai [(1971) 1 SCC 757, 759-61 (paras 3 & 4) : AIR 1971 SC 1201, 1202-04(para 3)] (hereinafter "Ahmedabad Municipal Corpn."). In this connection, we may refer to the latter judgment, which is particularly relevant for the present case.

21. Ahmedabad Municipal Corpn. [(1971) 1 SCC 757, 759-61 (paras 3 & 4) : AIR 1971 SC 1201, 1202-04(para 3)] was a case where a person was in arrears of property tax, due under the Bombay Provincial Municipal Corporation Act, 1949. Consequently, the Municipal Corporation created a charge over the property of the defaulter. However, the property was sold in execution of a mortgage decree. When the Municipal Corporation purported to exercise their charge over the property, the purchaser in court-auction filed a suit for a declaration that he was the owner of the property and that the arrears of municipal taxes due by the transferor were not recoverable from him by proceeding against the property purchased in the auction. In the appeal before this Court, the Municipal Corporation's main argument was that where the local law provided for the creation of a charge against a property for which municipal taxes were due, transferees of such properties were imputed with constructive knowledge of any charge created against the properties that

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they had purchased. This argument was, however, rejected. This Court held that while constructive notice was sufficient to satisfy the requirement of notice in the proviso to Section 100 of the TP Act, whether the transferee had constructive notice of the charge had to be determined on the facts and circumstances of the case. [Ibid., at SCC pp. 765-66 (para 12) : AIR pp. 1207-08(para 8)] In other words, this Court held that there could be no fixed presumption as to the transferee having constructive notice of the charge against the property. In fact, the principle laid down in Ahmedabad Municipal Corpn. [(1971) 1 SCC 757, 759-61 (paras 3 & 4) : AIR 1971 SC 1201, 1202-04(para 3)] has been correctly applied in a sales tax case similar to the present case. [CTO v. R.K. Steels, (1998) 108 STC 161 (Mad)].

16. In the case at hand, the facts are almost

similar. The notice for auction of the secured assets

of respondent No. 4 under the provisions of SARFAESI Act

was published by respondent No. 3 in "Daily Sakal"

newspaper on 16th January, 2012. Respondent NO. 2 or any

other Sales Tax Authority did not object to the proposed

auction of the secured assets of respondent No. 4. It

is the specific case of the petitioner that it obtained

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7/12 extracts of the lands - subject matter of the

auction sale prior to placing bid in the auction. In

the said 7/12 extracts, the charge of Sales Tax

Authorities was not reflected. The said 7/12 extracts

are the part and parcel of the sale certificate dated

21st November, 2012.

17. It is stated by the petitioner that the Sales

Tax Officer had informed respondent No. 3 vide letter

dated 6th March, 2012 that there were dues to the tune

of Rs.7,04,10,624/- payable from respondent NO. 4

towards sugarcane purchase tax, Bombay sales tax and

Central sales tax and asking respondent No. 3 to recover

the same on priority basis treating them as a first

charge over the sale-proceeds of the property of

respondent No. 4. It is the specific case of the

petitioner that respondent No. 3 did not inform about

the said dues to the petitioner and further respondent

No. 3 deliberately replied the letter dated 6th March,

2012 belatedly on 1st/2nd February, 2013. As stated

above, the last date for submission of bids was 14th

February,2012 and the date of opening thereof was 16th

February, 2012. It is, thus, clear that when the

auction notice was published and the bids were opened,

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there was no communication by the Sales Tax Authorities

made with even respondent NO. 3 about the dues pending

against respondent No. 4. Therefore, the communication

dated 6th March, 2012 made by the Sales Tax Officer to

respondent NO. 3 would not be of any help to respondent

No. 2 to show that the petitioner was made aware about

the dues standing against respondent No. 4 prior to

placing of the bid for purchase of the secured assets of

respondent No. 4. Had the said dues been brought to the

notice of the petitioner, the petitioner certainly would

have thought twice to place the bid for purchasing the

secured assets of respondent No. 4 for Rs. 48.51 crores.

The petitioner certainly would have considered the bare

value of the secured assets to be purchased and the

other known charges/encumbrances attached to it.

Perhaps, the petitioner would not have placed the bid

for Rs. 48.51 crores and reduced it to the extent of the

dues of respondent No. 2 payable from respondent No. 4.

In the circumstances, it would be clear that the

petitioner bonafide proposed to purchase the secured

assets of respondent No.4 for valuable consideration

without knowledge or notice, either actual or

constructive, about the charge of the Sales Tax

Authorities. Consequently, in view of the judgment in

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the case of Sherwood Resorts Pvt. Ltd. and another

(supra), respondent No. 2 cannot enforce the charge

for Rs.7,04,10,624/- as claimed in the impugned

communications dated 29th November, 2016 and 23rd

January, 2017, against the secured assets purchased by

the petitioner from respondent No. 3.

18. There is no dispute that the Sugar Factory of

respondent No. 2 was not functioning when the secured

assets were offered to be sold by respondent No. 3 by

auction as per the public notice dated 16th January,

2012. Respondent No. 3 had taken possession of the

secured assets of respondent No. 4 on 1st March, 2011

itself. In the letter dated 21st February, 2012,

addressed by respondent No.2 to the Talathi/Circle

Officer, Sajja Hadsani, Taluka Hadgaon, there is

specific mention about defunct status of the Sugar

Factory of respondent No.4. The letter dated 6th March,

2012 addressed by respondent No.2 to respondent No.3

also contains a positive statement that the Sugar

Factory of respondent No.4 is defunct. The Sugar Factory

of respondent No. 4 was in possession of respondent No.

3 from 1st March, 2011 onwards. Admittedly, respondent

No.3 had no licence to run Sugar Factory. It is not the

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case of any of the respondents that it was being run by

respondent No.3 for manufacturing sugar until issuance

of public notice for auction sale on 16th January, 2012

and even thereafter till it was given in possession of

the petitioner on 22nd November, 2012. If the

petitioner makes such defunct factory functional and

starts manufacturing sugar under its own licence, it

cannot be said that the petitioner purchased the

business interest of respondent no. 4. It is, thus,

clear that the petitioner has not purchased and

succeeded the business interest of respondent NO. 4.

19. The learned Senior Counsel for the petitioner

cited the judgment in the case of National Steel and

Agro Industries Limited, Mumbai Vs. State of Maharashtra

and others 2015 DJLS (Bom) 88, to which one of us (S.C.

Dharmadhikari, J.) was a party, wherein, almost under

the similar circumstances, it has been held that the

dues of the sales tax are not the dues against the

property, but against the business. The transfer of

ownership of business requires that the business should

be sold as an ongoing concern so as to render the

transferee as a successor in business interest of the

transferor. Only in such an eventuality, the transferee

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would be liable for the transferor's sales tax

liabilities. In the present case, respondent No. 3 did

not transfer the business of respondent No. 4 either in

whole or in part to the petitioner. Consequently, the

petitioner cannot be held liable to pay the sugarcane

purchase tax and arrears of sales tax due from

respondent No.4.

20. In the case of Sherwood Resorts Pvt. Ltd. and

another (supra), the sale certificate was not

registered. Even then, this Court held that the Sales

Tax Authorities cannot enforce their charge against the

secured assets purchased by the petitioners therein. In

the present case, the sale certificate has already been

registered on 21st November, 2012. Not only that, the

7/12 extracts produced by respondent No. 2 with his

affidavit-in-reply show that the name of the petitioner

has been mutated in the Record of Rights of the lands

purchased by it in the auction sale vide Mutation Entry

No. 1769. Moreover, the petitioner has obtained loan

from the Union Bank of India, Branch at Nanded by

creating mortgage on the said lands. Thus, the case of

the petitioner is on a better footing than that of the

petitioners in the case of Sherwood Resorts Pvt. Ltd.

                                        22                           wp2220-2017

and another (supra).  

21. The case of M/s Sonoma Management Partners

Pvt.Ltd. And others Vs. bank of Maharashtra and others

2016 SCC OnLine Bom 9649, cited on behalf of the

petitioner, also is on the same lines as that of the

above referred judgments.

22. For the above mentioned reasons, we hold that

respondent NO. 2 cannot recover the dues payable from

respondent No. 4 by enforcing any charge against the

secured assets purchased by the petitioner in the

auction. The impugned communications are liable to be

set aside and accordingly, set aside. However, we make

it clear that our order does not mean that respondent

No. 2 cannot proceed against respondent No. 4 -

defaulter factory. We further clarify that we have not

entered into the controversy regarding the priority

since it was not an issue before us. The issue of

priority between the Sales Tax Authorities and

respondent No. 3 shall be decided in appropriate

proceedings before the appropriate forum in accordance

with law.

                                       23                            wp2220-2017

23.              The   Writ   Petition   is   allowed.     The   Rule   is 

accordingly made absolute in the aforesaid terms.

However, in the circumstances of the case, we direct the

parties to bear their own costs.

                 Sd/-                                Sd/-
        [SANGITRAO S. PATIL]               [S.C. DHARMADHIKARI]
                JUDGE                              JUDGE


npj/wp2220-2017