TaxTMI 
TaxTMI 
2025 (7) TMI 913
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.... Sayantan Bose Ms. Manisha Das Ms. Neha Mishra ....for the ADDA ORDER 1. By consent of the parties both the writ petitions are taken up together for consideration. 2. The writ petition being WPA 3564 of 2025 has been filed by the CFM Asset Reconstruction Pvt. Ltd. (hereinafter referred to as the "secured creditor") while the writ petition being WPA 26115 of 2024 has been filed by private parties, amongst whom the petitioner no.1 in such petition appear to be the principal borrower who claims to be a lessee in respect of certain properties which form subject matter of the writ petition which has also been secured by way of mortgage with the secured creditor. 3. The secured creditor claims to be registered with the Reserve Bank of....
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....e thereof, the respondent nos. 5 and 6, in the second writ petition, inter alia, executed and entered into certain number of documents for the purpose of availing loan facilities. 5. Records would further reveal that in order to secure repayment of the credit facilities sanctioned by the assignor bank no. 1, the assignor bank no. 1 had issued a letter dated 4th February, 2010 ceding pari-pasu charge in favour of the assignor bank no. 2. The principal borrower had since made available a no-objection certificate dated 2nd March, 2010 issued by the assignor bank no. 2 in terms whereof, the assignor bank no. 2 agreed to cede charge on pari-pasu basis in favour of the assignor bank no. 1. 6. The principal borrower in terms of the memorandu....
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.... acquisition. It is the case of the secured creditor that the assignor bank no.2 had created the charge on the secured asset on 23rd March 2009 and it was later modified and the secured creditor created its security interest with the Central registry (hereinafter referred to as "CERSAI") which was registered on 28th July 2017. Since then, although attempts were made by the secured creditor to take over possession by invoking the provisions of the SARFAESI Act, the secured creditor could not do so. 10. In September 2024 it came to the knowledge of the secured creditor that the Principal Commissioner, CGST by invoking the provisions of Section 79(1)(d) of the CGST Act, 2017 (hereinafter referred to as the "said Act") has attached the secur....
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....placed reliance on a judgment of the Hon'ble Supreme Court delivered in the case of Standard Chartered Bank., v. V.Noble Kumar & Ors. reported in (2013) 9 SCC 620. 13. Per contra, Ms. Mukherjee, learned advocate appearing for the CGST authorities submits that in the instant case since the secured creditor despite issuing notice under Section 13(2) of the SARFAESI Act could not take possession and since, there were statutory dues payable to the CGST authorities, the CGST authorities had attached the property in question. According to her, there is no irregularity in this regard. The attachment has been made in accordance with law. She submits that the CGST authorities are entitled to recover the dues in accordance with the provisions of t....
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....it the secured creditor to deal with the secured asset. The issue as to whether the secured creditor has a priority vis-à-vis the statutory dues of the CGST authorities is no longer res integra. The Hon'ble Supreme Court in the case of Kotak Mahindra Bank Limited (supra) in paragraph 30 thereof has clarified the said position. To morefully appreciate the same the relevant paragraph is extracted hereinbelow:- "30.At this stage, it is required to be noted that Section 26-E of the SARFAESI Act which is inserted in 2016 is also having a non obstante clause. Even as per the submission on behalf of respondent no.1, two enactments have competing non obstante provision and nothing repugnant, then the non obstante clause of the subse....