M/S Aditya Industries vs Canara Bank Limited & Others
2021 Latest Caselaw 3576 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                            CWP No.658 of 2021




                                                                          .

                                            Decided on: 05.08.2021

    M/s Aditya Industries            ....Petitioner.





                   Versus
    Canara Bank Limited & others     ...Respondents.
    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





    Whether approved for reporting?1 No

    For the petitioner : M/s Suneet Goel & Satish Sharma,
                         Advocates.

    For the respondents : Mr. Sanjay Dalmia, Advocate, for

                          respondents No.1 and 2.
                          Mr.Ajay Vaidya, Senior Additional
                          Advocate General, with Mr. Adarsh
                          Sharma, Additional Advocate General,


                          for respondents No.3 to 5.
                          None for respondent No.6.




    Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has prayed

for the following reliefs:-

"(a) Respondents No.1 and 2 may kindly be directed to issue sale certificate qua the auctioned properties i.e. Lot-1: Factory, Land and Building situated at village Rampur Jattan, Nahan Road, Kala Amb, Tehsil Nahan, District Sirmaur (H.P.), measuring

Whether reporters of the local papers may be allowed to see the judgment?

8 Bighas standing in the name of M/S Nova Lami Boards Pvt. Ltd. Sale Deed No.3263 dated 28.6.2006 and Lot-II: Plant & Machinery, Fixed

.

Assets & Misc. In favour of the petitioner after payment of remaining amount in the sum of Rs.152.96 Lakhs by the petitioner;

(b) Lien being claimed by respondents No.3 to 5 over the auctioned properties may kindly be ordered to be lifted and instead may be attached to the sale proceeds of the auctioned properties of their appropriation to the successful party in CWP No.49

of 2020;

(c) The respondents may be directed to hand over the possession of the auctioned properties to the

petitioner free of any lien, attachment, etc."

2. The facts are not in much dispute. M/s Nova Lami

Boards Pvt. Limited availed loan from the Canara Bank. On

account of the inability of M/s Nova Lami Boards Pvt. Limited

to liquidate the same, proceedings stood initiated by the bank

against it under the provisions of SARFAESI Act, 2002. The

auction of the property, subject matter of the writ petition,

was duly held by the Canara Bank and the petitioner before

this Court is the bidder whose bid was accepted by the bank

qua the sale of the properties in issue. It appears that the

loanee was owing certain amount to the Revenue and on this

count, in lieu of the outstanding amount of the Excise and

Taxation Department, said entries stand incorporated in the

revenue record in favour of the State on the plea that State

has first charge over the said property.

.

3. Learned counsel for the petitioner has submitted

that the issue as to whether the first charge over the property

of the loanee would be that of the bank (from whom the

petitioner has purchased the properties in the auction) or that

r to of the Revenue, now stands decided by this Court in CWP

No.49 of 2020, titled as Canara Bank Versus State of

Himachal Pradesh and others, decided on 23.07.2021 and in

view of the findings returned in the said petition, this writ

petition can also be disposed of by observing that the said

judgment shall mutas mutandis apply to this petition also and

as the first charge over the property in view of the statutory

provisions contained in the SARFAESI ACT, 2002 as well as

Recover of Debts and Bankruptcy Act, 1993 is that of the

bank, a mandamus be issued to respondents No.1 and 2, to

issue the Sale Certificate in favour of the petitioner.

4. The respondents have not disputed the factum of

the issue raised in the present petition being covered by the

judgment passed by this Court in CWP No.1638 of 2017, titled

as Punjab National Bank and others Versus State of

Himachal Pradesh and Others, decided on 19.05.2021.

.

However, learned Senior Additional Advocate General

submits that the petition be disposed of in terms of the above

judgment, but without prejudice to the legal rights of the

respondents/ State as the State intends to challenge the

r to judgment passed by this Court in CWP No.1638 of 2017, titled

as Punjab National Bank and others Versus State of

Himachal Pradesh and Others, decided on 19.05.2021.

5. Having heard learned counsel for the parties and

after perusing the record of the present writ petition as also

the judgment passed by this Court in CWP No.1638 of 2017

(supra), as it has not been dispute by the State that the issue

involved in this writ petition is, in fact, covered by the

judgment, dated 19.05.2021, passed by this Court in Punjab

National Bank and another Vs. State of Himachal Pradesh

and others, CWP No.1638 of 2017, therefore, this writ petition

is allowed by holding that the findings returned in CWP

No.1638 of 2017 (supra) shall mutatis mutandis apply to this

petition.

6. To make it more clear, this writ petition is disposed

of by holding that the findings returned in CWP No. 1638

.

of 2017 (supra) shall mutatis mutandis

apply to this petition also and the Bank being "Secured

Creditor", has preference over the respondent-State

with regard to the debts due from the private

respondent(s) rand

the respondent-Department

claim first charge over secured assets of the loanee, as the cannot

Bank has first charge over the secured

assets, in view of the provisions of the SARFAESI Act, 2002

and Recover of Debts and Bankruptcy Act,

1993, as amended from time to time. It is further held that the

provisions of Section 26 of the H.P. Vat Act, 2005 shall have to

give way to the provisions of Section 26E of the SARFAESI

Act, 2002 and Section 31B of the RDB Act, 1993.

7. As a consequence thereof, respondents No.1 and 2

are directed to issue the Sale Certificate, in favour of the

petitioner.

8. It is clarified that the amount which stands

deposited with the Registry of this Court by the petitoner,

shall be released in favour of respondents No.1 and 2 and

thereafter, respondents No.1 and 2 shall issue Sale Certificate

.

in favour of the petitioner within two weeks from today.

9. It is further clarified that the rigors of the

SARFAESI ACT, 2002 with regard to the period within which

the sale proceedings are to be completed shall not apply to the

r to case i.e. to say that the time which has been spent by the

parties in the Court, shall be excluded while computing the

same. Petition stands disposed of, so also pending

miscellaneous applications, if any.

(Ajay Mohan Goel) Judge

August 05, 2021 (Rishi)