2020 (10) TMI 150
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....e petitioner could not repay the remaining amount. Subsequently, the amount has been paid and received by the 1st respondent. 2. In such view of the matter, the writ petition in W.P.No.8546 of 2020 stands disposed of by directing the 1st respondent to issue the sale certificate and thereafter, register the same. 3. Insofar as the other three writ petitions viz., 8547, 8548 and 8549 of 2020 are concerned, there is a common grievance which the petitioner seeks to raise before us. The Sub Registrar viz., the 6th respondent, entered the documents for which the sale certificates are given, but the registration declined on the premise that three encumbrances have been entered into. In W.P.No.8547 of 2020, the Encumbrance No. is 8 of 2010 on behalf of the Income Tax Department; W.P.No.8548 of 2020, the Encumbrance No. is 5 of 2012 on behalf of the Commercial Taxes Department; and in W.P.No.8549 of 2020, the Encumbrance No. is 11 of 2019 on behalf of the Customs Department. 4. A communication addressed by the 6th respondent to the Special Government Pleader, High Court of Madras, in Na.Ka.No.202/2020 dated 04.09.2020 has been produced, by which, it has been informed that the Encumbrance....
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....rit petitions have been listed before the Full Bench in pursuance to the reference order in W.P.No.6267 of 2006 and W.P.No.253 of 2011, in respect of the following issues:- ''a) As to whether the Financial Institution, which is a secured creditor, or the department of the government concerned, would have the 'Priority of Charge' over the mortgaged property in question, with regard to the tax and other dues. b) As to the status and the rights of a third party purchaser of the mortgaged property in question.'' 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 revenue....
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.... to the Central Government or 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." 9. In the light of the judgment of the Full Bench of this Court reported in 2016 (6) CTC 769 (cited supra) and on a conjoint reading of Section 26-E of the SARFAESI Act and Section 31-B of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, there cannot be any doubt that the rights of a secured creditor to realise the 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, inasmuch as Section 31-B of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, was introduced with a "notwithstanding" clause and it has also come into force fr....
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....ower upon the secured creditors to take possession and dispose of the secured assets without the intervention of the Court or Tribunal. .... .... .... .... .... .... .... .... .... .... .... .... .... .... 21. A non-obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the nonobstante clause. It is equivalent to saying that inspite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the nonobstante clause occurs. [See 'Principles of Statutory Interpretation', 9th Edition by Justice G.P. Singh Chapter V, Synopsis IV at pages 318 & 319] 22. When two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpret....