Devan Ramachandran, J.:— These writ petitions, save five, have been filed by various Banks and Financial Institutions challenging the action of the State's Revenue Machinery (‘the Revenue’), in taking possession of and attempting to sell certain properties for alleged arrears of Sales Tax and Value Added Tax from its respective owners, which are claimed by them to be their secured assets, consequent to equitable mortgages having been created over them in their favour towards security for financial facilities/assistance availed of by its owners.
2. Four among the afore writ petitions, namely W.P.(C) Nos. 31945/2017, 37543/2017, 37552/2017 and 34002/2018 have been filed by the auction purchasers of secured assets sold by the Banks/Financial Institutions and they seek that the sale certificates in their favour be directed to be registered by the Revenue authorities, who appear to be refusing to do so citing arrears of sales tax left due by the original owners; with consequential directions to effect the transfer of registry of the properties in their favour.
3. Finally, W.P.(C) No. 28962/2017 has been filed by the owner of a property challenging the action of the respondent-Bank against it for recovery of debts from him asserting that the Revenue has First Charge over it.
4. While the petitioner-Banks/Financial Institutions claim that they have the primary right, as secured creditors, to proceed against the properties in question under Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (‘the SARFAESI Act’ for brevity) and Section 31B of the Recovery of Debts and Bankruptcy Act (‘the RDB Act’ for brevity), the Revenue claims ‘First Charge’ over them under the provisions of Section 26B of the Kerala General Sales Tax (KGST) Act and Section 38 of the Kerala Value Added Tax (KVAT) Act.
5. It is this conflict of claims and interests which are at the core of these writ petitions and which call for resolution from this Court.
6. Obviously, therefore, before I can move ahead, an examination of these four provisions become imperative, for which purpose, they are drawn out and reproduced as under:
(a) Section 26E of the SARFAESI Act:
“Priority to secured creditors - Notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable 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 (31 of 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.”
(b) Section 31B of the RDB Act:
“Priority to secured creditors.- 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 revenues, taxes, cesses and rates due to the Central Government, State Government or loan authority.
Explanation.- For the purpose of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), in cases where insolvency or bankruptcy proceedings are pending in respect of secured asserts of the borrower, priority to secured creditors in payment of debt shall be subject to the provisions of that Code.”
(c) Section 26B of the KGST Act:
“Tax payable to be first charge on the property:—
Notwithstanding anything to the contrary contained in any other law for the time being in force, any amount of tax, penalty, interest and any other amount, if any, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or such person.”
(d) Section 38 of the KVAT Act:
“Tax payable to be first charge on the property.- Notwithstanding anything to the contrary contained in any other law for the time being in force, any amount of tax, penalty, interest and any other amount, if any, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or such person.”
7. As is conspicuous from the afore sections, the SARFAESI Act and the RDB Act indubitably declare that the debt of a secured creditor shall be paid in priority over all other debts, including ‘revenues, taxes, cesses and other rates payable to the Central Government or State Government or Local Authority’ and the RDB Act, in addition, elevates this right of the Bank/financial Institution to be in priority over all others, while the KGST Act and the KVAT Act avow that the arrears of tax, penalty, interest or any other amounts under it shall be a ‘First Charge’ over the properties of the defaulter.
8. The Revenue thus assert that since they have the ‘First Charge’ over the properties in question, they are legally entitled to take its possession and sell it to recover the arrears of tax, invoking the procedural mechanism under the Kerala Revenue Recovery Act (RR Act), which is opposed with equal vehemence by the petitioner-Banks/Financial Institutions on the strength of the afore acclamation of the rights in their favour by the SARFAESI Act and the RDB Act that the secured debts shall be paid off in priority over taxes, etc.
9. Thus, the worth and caliber of the afore seemingly antipodal claims can obtain a proper measure only if one examines and concludes on the difference, if any, between the phraseology employed in the afore two provisions, but constantly keeping in mind that the provisions of the SARFAESI Act and the RDB Act have been brought in later to the KGST Act and the KVAT Act, and resultantly, if the rights granted under both these Statutes are at par, then the former will prevail under Articles 246(1) and 254 of the Constitution of India. In other words, unless it is demonstrated that the KGST Act and the KVAT Act offer an overriding protection to the Revenue over the rights of the Banks under the SARFAESI Act and the RDB Act, then the former will have to yield to the latter.
10. I have heard the learned counsel for the petitioners, the learned counsel for the party respondents, the learned Standing Counsel for the respondent Banks/Financial Institutions and the learned Additional Advocate General for the official respondents.
11. Sri. Ranjith Thampan, learned Additional Advocate General, was allowed to open submissions because it is for him to defend the actions of the Revenue, which are under challenge herein and to establish that they have a better right over the properties under the mandate of the KGST Act and the KVAT Act.
12. Sri. Renjith Thampan began by arguing that there is an unmistakable difference in the concept of ‘First Charge’ over a property vis-a-vis the ‘priority of debts’ charged on it. According to him, a ‘First Charge’ over a property is a right thereon, which can be extinguished only by a process of law or upon the Revenue bringing it to sale and in no other manner. His specific predication is that even if there are other debts charged on the property, which concededly may have to be paid in priority as per the SARFAESI Act or the RDB Act, the Revenue must still sell it first for the ‘charge’ to be extinguished and that its sale through any other mechanism, be that the SARFAESI Act or the RDB Act or even by a Civil Court under the Code of Civil Procedure, will cause its ‘charge’ over it to subsist in spite of such sale. He, however, in the same breath, concedes that since Section 26E of the SARFAESI Act and Section 31B of the RDB Act mandate that the secured debts must be paid in priority even over the taxes of the Central Government and the State Government, the proceeds of the sale thus conducted by the Revenue will have to be first adjusted towards the secured debt and that Revenue will be entitled only to the balance, if any.
13. In effect, the learned Additional Advocate General argues for the proposition that if the ‘First Charge’ in favour of the Revenue is to be extinguished, even though they would not be entitled to priority in appropriation of the sale proceeds - it admittedly having to be paid against the secured debt, the properties in question will have to be sold by them and therefore, that the impugned action of the Revenue in having taken steps to sell the properties in question is irreproachable and forensically valid.
14. In support of his afore contentions, Sri. Ranjith Thampan cites Azheekkal Sree Varaha Devaswom v. Ummer Sait Abdulla Sait (AIR 1951 TC 17), Kunjikavu Amma v. Janaki Amma . (1957 KLT 392), Union of India v. Somasundaram Mills (P) Ltd. ((1985) 2 SCC 40), State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation ((1995) 2 SCC 19), Sherry Jacob v. Canara Bank (2004 (3) KLT 1089) and Sundaram Finance Ltd. v. Tahsildar (2009 KHC 4373).
15. Continuing with the above line of submissions, the learned Additional Advocate General, relying on the provisions of Section 26C(2) of the SARFAESI Act, further contended that since Section 26C thereof does not mention anything about Government dues, including tax recoverable, but only deals with the rights of a secured creditor or a person holding attachment, which rights are to be registered with the Central Registry as per the provisions of Chapter IVA of the said Act, the statutory First Charge attached to the property is not ‘touched’ when the property is sold under the said Act. He contends that this is particularly so, since the sale of a secured asset by a Bank/Financial Institution under the SARFAESI Act is in pari materia with its sale by its original owner as per Section 13 of the said Act. The Additional Advocate General thus argues that because Section 26E of the SARFAESI Act does not ‘mention’ the extinguishment of the First Charge of the Revenue over the property and does not prohibit its sale through other methods, no inhibition can be construed against its sale by the Revenue for recovering arrears of tax, but then expressly admits, without reservation, that out of the sale amount, the secured creditors' due will have to be paid in priority.
16. In further force of his afore submissions, the learned Additional Advocate General contends that, as per the SARFAESI Act and the RDB Act, the sale of a property under its provisions can only ‘have the trappings of a court sale in execution of a Civil Court money decree’ (sic). He then submits that, as is evident from Rule 8(6)(a) and Rules 9(7)(2) to 9(7)(10) of the Security Interest Enforcement Rules, 2002 (‘the Enforcement Rules’ for brevity), the proclamation of sale under the SARFAESI Act has to necessarily show the prior encumbrances over it and consequently that the sale can be completed only subject to such. He says that, contrary to this, the sale under the RR Act extinguishes all such encumbrances as is provided under Section 60 thereof and reiterates that even if the properties are sold by the Banks/Financial Institutions under the SARFAESI Act or RDB Act, the charge of the Revenue over it continues until the sale is conducted under the RR Act.
17. The learned Additional Advocate General concluded his submissions by relying on Central Bank of India v. State of Kerala ((2009) 4 SCC 94) and Employees Provident Fund Commissioner v. Official Liquidator of Esskay Pharmaceuticals Limited ((2011) 10 SCC 727) and contended that the former judgment clearly declares that the Banks/Financial Institutions cannot claim a First Charge over the properties under the SARFAESI Act or RDB Act and that the latter judgment takes it beyond doubt that even if priority for recovery is granted, it will not override the Revenue's statutory First Charge. He then added that even if the argument to the contrary is accepted, the provisions of RR Act are not ousted on account of Section 37 of the SARFAESI Act, which expressly says that application of other laws is not barred.
18. In contrario sensu, Sri. S. Easwaran, learned counsel appearing for the petitioner-Banks in W.P.(C) Nos. 28316/2016, 37552/2017 and 34380/2018, asserted that the submissions made on behalf of the Revenue by the learned Additional Advocate General cannot garner legal support since a series of judgments of the Hon'ble Supreme Court and this Court have now taken it beyond the pale of any dispute that there is little difference in the effect of the phraseology employed in the afore-extracted provisions of the SARFAESI Act and the RDB Act on one hand and the KGST Act and the KVAT Act on the other. He submits, relying on H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior v. Union of India ((1971) 1 SCC 85), Govind Chandra Pal v. Dwaraka Nath Pal (ILR Calcutta 837) and Raja Sri. Shiva Prasad v. Beni Madhav (ILR (1) Patna 387) that a ‘First Charge’ over a property under the KGST Act and KVAT Act only gives the Revenue the right to sell it first in order to recover their dues and nothing more and therefore, that once Section 26E of the SARFAESI Act and Section 31B of the RDB Act made the secured debt to be payable in priority over all other debts, including all revenue, taxes, cesses and other rates payable to the Central Government or State Government or Local Authority and upraised the right to recover it also to be in priority of any other debt/liability, it effectively parses the ‘First Charge’ rights of the Revenue inoperative and ineffectual.
19. Sri. S. Easwaran further submitted that once the afore Sections in the SARFAESI Act and RDB Act were brought into effect, the earlier prescriptions in the KGST Act and KVAT Act, which are in conflict with them, are rendered non-est on account of Article 254 of the Constitution of India or, in any event, subservient to the former under the mandate of Article 246(1) of the Constitution. He relies on the judgments of the Hon'ble Supreme Court in State Bank of India v. Santosh Gupta ((2017) 2 SCC 538) and in Government of AP v. J.B. Educational Society ((2005) 3 SCC 212) in support of these submissions and adds that even assuming that the contention of the learned Additional Advocate General that Section 26E of the SARFAESI Act has not been notified is accepted, it would make no difference because, on the mere factum of the said provision being made by the Parliament, without it having to be notified, the principle of ‘primacy of laws made by the Parliament’ would fully apply, going by the judgment of the Hon'ble Supreme Court in State of Kerala v. Mar Appraem Kuri Company Limited ((2012) 7 SCC 106).
20. Sri. S. Easwaran then proceeds to answer the submission of the learned Additional Advocate General that the ‘First Charge’ of the State over the property is not extinguished even if it is sold by the Bank/Financial Institution under the provisions of the SARFAESI Act or RDB Act by citing the judgments of the Hon'ble Supreme Court in Textile Labour Association v. Official Liquidator ((2004) 9 SCC 741), Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner ((2009) 10 SCC 123), Official Liquidator of Esskay Pharmaceuticals Limited (supra) and Jitendra Nath Singh v. Official Liquidator ((2013) 1 SCC 462), contending that in the afore judgments the Hon'ble Court has considered the concept of ‘First Charge’ vis-a-vis ‘priority of payment’, in the context of Sections 529 and 529A of the Companies Act, 1956 in comparison with various other Statutes which had provided for other First Charges and has affirmatively settled the law that the words ‘priority of payment’ in the Companies Act mean that such payments will be liable to be made even before the ‘First Charge’ claimed under other Statutes are honoured and asserts that the same principle should apply while interpreting Section 26E of the SARFAESI Act and Section 31B of the RDB Act, especially in the context of the facts involved in these cases.
21. Sri. Mohan Jacob George, learned counsel appearing for the petitioners in W.P.(C) No. 19639/2019, also made submissions similar to those recorded above, but emphasised on the principle of ‘primacy to the Central Legislation’ under Article 246(1) of the Constitution of India. He argues that since the SARFAESI Act and the RDB Act have been legislated by the Parliament under the powers vested with it through Entry 45 of List II, while the State Legislations were made under the relevant entry in List II of the Constitution of India, in the event of any conflict between them, the former will prevail. He cites for support the proposition the judgment of the Hon'ble Supreme Court in UCO Bank v. Dipak Deebbarma ((2017) 2 SCC 585) and contended that even in the case of ‘incidental encroachment’ the Legislation enacted by the dominant power will prevail and therefore, that the dominant legislation will override the other. He then made very extensive arguments on the concepts of pith and substance and the legislative competence of the Parliament and State Legislatures and insisted that the moment the Parliament steps in by enacting a law traceable to Entry 45 of List I of the Constitution of India, the State law, to the extent to which it is inconsistent with it, must give way. He says that, as has been indubitably declared by the Hon'ble Supreme Court in Santosh Gupta (supra), the dominant legislation being the parliamentary legislation, the State Legislations would be subservient to it and therefore, that the Banks/Financial Institutions will obtain the right to first proceed against the properties involved and only thereafter can the State, if there is any surplus, claim the same towards their dues.
22. Sri. Mohan Jacob George then treaded on the contours of ‘First Charge’ and ‘priority of payment’, relying on National Iron & Steel Rolling Corporation (supra) and State of M.P. v. State Bank of Indore ((2002) 10 SCC 441) and asserted that, going by the ratio of these judgments, on account of the provisions of Section 26E of the SARFAESI Act and Section 31B of the RDB Act, the right of the Banks/Financial Institutions to proceed against the properties involved is absolutely protected in priority to all other debtors or claimants, including the Revenue. He concluded by showing me from the Black's Law dictionary (Centennial Edition) and the Law Lexicon by Sri. P. Ramanatha Aiyar (Reprint Edition 1987) that the word ‘priority’ has been defined as ‘precedence and/or a legal preference in competing claims’ and that as per these definitions, when two persons have similar rights in respect of the same subject matter, one being entitled to exercise his rights to the exclusion of the other, he is said to have ‘priority’ and that the Banks/Financial Institutions ineluctably obtain this ‘priority’ through the aforementioned provisions of the SARFAESI Act and the RDB Act.
23. He concludes by asserting that the Revenue cannot proceed against the properties in question any further taking support from Section 37 of the SARFAESI Act, since it does not take in the RR Act, as has been already declared by the Hon'ble Supreme Court in Madras Petrochem Limited v. Board for Industrial and Financial Reconstruction ((2016) 4 SCC 1).
24. Sri. Madhu Radhakrishnan, learned counsel appearing for the petitioner in W.P.(C) No. 12849/2018, after endorsing all the submissions made as afore by Sri. S. Easwaran and Sri. Mohan Jacob George, submitted that various High Courts in India have concluded affirmatively in favour of the proposition that Section 26E of the SARFAESI Act and Section 31B of the RDB Act offer the secured creditor the first right to recover their dues, notwithstanding any other right offered by any other Statute, to the contrary. He shows me that a Full Bench of the Madras High Court in Assistant Commissioner (CT), Anna Salai-III Assessment Circle v. The Indian Overseas Bank ((2017) 202 Comp Cas 226) has held that the rights of a secured creditor to realise the secured 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. He says that identical views have been taken by the Bombay High Court in Axis Bank Limited v. State Of Maharashtra ((2017) 202 Comp Cas 228), which has concluded that ‘there is statutory recognition of priority claim of the secured creditor in view of the amendment brought into effect by virtue of Act No. 44 of 2016 thereby introducing section 26E providing for priority to secured creditor over all other debts and all taxes, cess and other rates payable to Central Government or the State Government or the Local Authority ‘. He finishes by asserting that the rights of a secured creditor having been thus statutorily protected, the Revenue cannot proceed against the properties, notwithstanding the ‘First Charge’ that they claim, since any such charge can only be subservient to Section 26E of the SARFAESI Act and Section 31B of the RDB Act.
25. Sri. P. Gopinath Menon, learned Senior Counsel, assisted by Sri. B.H. Mansoor, learned counsel appearing for the petitioner in W.P. (C) No. 27147/2018 and the various learned counsel appearing for the Banks/financial Institutions in other cases have also made arguments on the same lines as afore, touching on the nuances of the principles recorded above and suffice to say, their common contention is that the rights of their clients to proceed against the properties involved in these cases are protected against such attempt by the Revenue. He further submits that like in many of the above cases, the Revenue has already taken possession of the properties, which his client claims to be the secured assets and therefore, that they are unable to conduct the sale. He adds that, in fact, in this particular case, this Court had passed two interim orders on 14.11.2018 and 12.02.2019 allowing joint sale of the property by the petitioner-Financial Institution and the Revenue but that it did not fructify since the upset price fixed, reckoning both the liabilities, did not attract the bidders. He thus prays that his client be allowed to sell the property and that the Revenue be directed to return possession of the same forthwith so as to enable them to do so.
26. As far as W.P.(C) Nos. 31945/2017, 37543/2017, 37552/2017 and 34002/2018 are concerned, the petitioners are auction purchasers and they seek that the Revenue authorities and the Village authorities be directed to effect transfer of registry of the concerned properties in their names and that they be permitted to remit the basic tax, notwithstanding the attachments effected on them at the instance of the Revenue. They assert that since they have purchased the properties under the provisions of the SARFAESI Act/RDB Act, they are entitled to own and possess the same free of all charges and encumbrances in view of the previous discussions in this judgment.
27. Once all the submissions and arguments of the learned counsel for the parties are recorded as above, it becomes enjoined on this Court to conclude affirmatively on the syllogistical claims and contentions for proper guidance in similar matters in the future.
28. To do this, I will first require to assessively speak on the legal attributes of a ‘Charge’ and a ‘Mortgage’.
29. A ‘Charge’ is defined under Section 100 of the Transfer of Property Act (TP Act) in the following manner:
“Charges.- 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 later 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].”
30. While so, the statutory amplitude of a ‘Mortgage’ is explained in Section 58 of the same Act as below:
“Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.- (a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.”
31. It is thus incontestable that a ‘Charge’ does not create any right over the property but allows the charge holder to deal with the property in the same manner as a simple mortgagee would be entitled to under the various Sections of the TP Act. I say this is uncontestable because Section 100 of the TP Act excludes Mortgage from the definition of a Charge but makes all the provisions applicable to a simple mortgage relevant to a Charge. Further, as is manifest from the second limb of Section 100, a Charge gets extinguished when the property is transferred to another person who obtains it for consideration and without notice of the said Charge. Therefore, while every Mortgage is a Charge over the property, every Charge is not a Mortgage and does not create any rights over the same in favour of the charge holder. It is not necessary for me to labour on these any further, because I have the guidance of the judgment of the Hon'ble Supreme Court declaring these principles very lucidly in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior (supra), the relevant observations of which make these concepts absolutely certain and are, therefore, extracted as under:
“Under the general law relating to transfer of property, a charge does not give rise to a right in rem : the right is however more than a mere personal obligation, for it is a jus ad rem a right to payment out of property specified : Govind Chandra Pal v. Dwaraka Nath Pal (ILR 35 Cal 837, 843); Raja Sri Sri Shiva Prasad Singh v. Beni Madhab Chowdhury (ILR 1 Pat 387). A charge gives a right to payment out of a specific fund or property, and a right to prior payment; but it does not create a right in rem in the fund or the property. A charge therefore gives rise to a right to receive payment, out of a specified fund or property in preference over others.”
32. These views, conclusions and declarations found unequivocal support in a subsequent judgment of the Hon'ble Supreme Court in Dattatreya Shanker Mote v. Anand Chitaman Datar ((1974) 2 SCC 799), wherein the following were stated rather emphatically:
“In order to ascertain the true import of the terminology used in Section 100 of the Act, it is necessary to state clearly some of the basic concepts embodied in the Act which are beyond controversy. Section 5 defines “transfer of property” as meaning “an Act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons”, and to “transfer property” is to perform such act. Section 6 says that property of any kind may be transferred, except as otherwise provided by the Act or by any other law for the time being in force other than those mentioned specifically in clauses (a) to (i) which cannot be transferred. Section 8 deals with the operation of transfer and says that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. It then narrates all such incidents having regard to the land, debt, etc., etc. Chapter III of the Act deals specificallywith sales of immoveable property, the sale in Section 54 be defined as transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Mortgages are dealt with in chapter IV where mortgage is defined in Section 58(a) as the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. Different kinds of mortgages are also specified in that section of which clause (b) states what a simple mortgage is, namely, where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money and agrees, expressly or impliedly, that in the event of his failing to pay according to his contract, the mortgage shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
A charge on the other hand under Section 100 of the Act is neither a sale nor a mortgage because it creates no interest in or over a specific immoveable property but is only a security for the payment of money.”
33. A close survey of the afore judgments thus renders it beyond contest that the words ‘First Charge’ and ‘priority in payment of debts’ are virtually synonymous and means the same, except for its semantic variation on account of differing phraseology. In both events, the holder obtains the privilege of recovery before anyone else and hence, whether it is the ‘First Charge’ or the right to claim ‘Priority’ in recovery, the ultimate effect and consequence is the same.
34. Thus, even though the KGST Act/KVAT Act creates a ‘First Charge’ in favour of the Revenue to recover the arrears of tax, the afore provisions of the SARFAESI Act and RDB Act make the secured dues entitled to be paid in priority over such taxes and in fact, elevates the rights of the secured creditor, to recover such dues, also to a position of priority.
35. As has also been rightly understood by the learned Additional Advocate General, the cumulative effect is that whoever sells the property or in whatever manner it is sold, the secured debts will require to be paid off first and all others will have to wait for their turn. Viewed in this purlieu, the predication of the learned Additional Advocate General that the ‘First Charge’ of the Revenue over the properties will be extinguished only if they sell the property first, pails into insignificance because the statutory right of the Revenue is, at the best, to bring the property to sale and nothing more.
36. Irrefragibly, when the secured creditors have a right in priority to have their debts extinguished, obviously, their right to proceed against the property would also rank high than that is claimed by the Revenue. The assertion of the Revenue that their ‘Charge’ will continue over the property until it is sold by them, hence, is rendered without forensic support to stand on.
37. That so said, the next question that arises is whether Section 26E of the SARFAESI Act and Section 31B of the RDB Act create an overriding and first right in favour of the Banks/Financial Institutions to recover their dues, over and above the rights of the Revenue created through the KGST Act/KVAT Act. In fact, this enquiry has been rendered relatively easy for this Court because, in Central Bank of India v. State of Kerala ((2009) 4 SCC 94), the Hon'ble Supreme Court considered the right of the Banks/Financial Institutions as regards recovery of their dues prior to the afore two provisions being introduced in the SARFAESI Act and in the RDB Act. The conclusions of the Hon'ble Supreme Court are unequivocally worded that, in the absence of these provisions in the respective Statutes, the Banks/Financial Institutions cannot claim any priority over the Revenue's First Charge on the properties concerned for recovery of dues of Sales Tax/Value Added Tax. The disposition of the Hon'ble Court in this area is lucid and available in paragraphs 126, 129 and 130 of the said judgment, which requires to be read in full and is, therefore, re-produced as under:
“126. While enacting the DRT Act and the Securitisation Act, Parliament was aware of the law laid down by this Court wherein priority of the State dues was recognised. If Parliament intended to create first charge in favour of banks, financial institutions or other secured creditors on the property of the borrower, then it would have incorporated a provision like Section 529 A of the Companies Act or Section 11(2) of the EPF Act and ensured that notwithstanding series of judicial pronouncements, dues of banks, financial institutions and other secured creditors should have priority over the State's statutory first charge in the matter of recovery of the dues of sales tax, etc. However, the fact of the matter is that no such provision has been incorporated in either of these enactments despite conferment of extraordinary power upon the secured creditors to take possession and dispose of the secured assets without the intervention of the court or Tribunal. The reason for this omission appears to be that the new legal regime envisages transfer of secured assets to private companies.
129. If Parliament intended to give priority to the dues of banks, financial institutions and other secured creditors over the first charge created under State legislations then provisions similar to those contained in Section 14-A of the Workmen's Compensation Act, 1923, Section 11(2) of the EPF Act, Section 74(1) of the Estate Duty Act, 1953, Section 25(2) of the Mines and Minerals (Regulation and Development) Act, 1957, Section 30 of the Gift Tax Act, and Section 529-A of the Companies Act, 1956 would have been incorporated in the DRT Act and the Securitisation Act.
130. Undisputedly, the two enactments do not contain provision similar to the Workmen's Compensation Act, etc. In the absence of any specific provision to that effect, it is not possible to read any conflict or inconsistency or overlapping between the provisions of the DRT Act and the Securitisation Act on the one hand and Section 38-C of the Bombay Act and Section 26-B of the Kerala Act on the other and the non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act cannot be invoked for declaring that the first charge created under the State legislation will not operate qua or affect the proceedings initiated by banks, financial institutions and other secured creditors for recovery of their dues or enforcement of security interest, as the case may be.”
38. When one reads the afore opinion of the Hon'ble Supreme Court, it is left without any doubt that, but for Section 26E of the SARFAESI Act and Section 31B of the RDB Act, such Statutes do not, in any manner, operate to create a better right for recovery in favour of the Banks/Financial Institutions over that of the Revenue. However, these provisions were brought in and incorporated in the respective Statutes after this judgment, clearly with the intend to override this lacuna. Therefore, the resultant question is whether these provisions would create a better right in favour of the Banks/Financial Institutions, which is superior to that enjoyed by the Revenue under the KGST Act/KVAT Act.
39. The learned Additional Advocate General, as I have already seen above, has built his entire arguments on the assertion that the statutory First Charge ‘creates a right’ for the State over the properties and that such right can be extinguished only if the Revenue sells the property and in no other manner. However, as has already been held by me above, the ‘First Charge’ claimed by the Revenue does not and cannot create any right over the property but only enables it to deal with the same as a simple mortgagee would be entitled to. Obviously, therefore, the contention of the Revenue built on ‘a claim of right’ over the properties fails, without any further requirement for expatiation; corollarily, enjoining me to consider if the provisions of the KGST Act/KVAT Act would still grant to the Revenue the First Right to proceed against it for recovery of the tax arrears.
40. It is here that the specific provisions of Section 26E of the SARFAESI Act and Section 31B of the RDB Act become necessary for a detailed evaluation.
41. As has been extracted above, Section 26E of the SARFAESI Act provides that the debts due to any secured creditor shall be paid in priority over all other debts and all revenue, taxes, cesses and other rates payable to the Central Government or State Government or Local Authority. Section 31B of the RDB Act takes this one step forward and elevates the right of the secured creditors to realise their debts, by sale of the secured assets, to enjoy priority and then re-affirms that such debts will be paid in priority over the revenue, taxes, cesses and other rates payable to the Central Government or State Government or Local Authority. It is thus irrefragible and in fact, expressly conceded to by the learned Additional Advocate General that the Banks/Financial Institutions have the First Right to have their debts extinguished; but, as has been recorded above, the Revenue merely claims that they have right to sell the property first. This argument again is flawed because the ‘First Charge’ creating no right over the property, the Revenue cannot claim a First Right to proceed against it either in the face of the provisions of the SARFESI Act or RDB Act with which we are dealing in this case. In fact, on a closer look and in the ultimate analysis, the concept of ‘First Charge’ and ‘debt being paid in priority’ are fraternal twin provisions which virtually means the same - both giving the holder such rights, the benefit of selling the property and recovering their dues before any other.
42. A further test of the afore proposition, if so necessary, is not different because the principles of ‘priority in payment of dues’ in the context of the Companies Act have been considered by the Hon'ble Supreme Court in several judgments and many of them have been cited by the learned counsel for the respondents Banks/Financial Institutions. I will briefly deal with a few of them solely to confirm that my view as afore do not suffer from error.
43. In Textile Labour Association (supra), the provisions of Sections 529 and 529A of the Companies Act, 1956 were closely examined and the Hon'ble Supreme Court declared its ambit as under:
“The effect of Sections 529 and 529-A is that the workmen of the company become secured creditors by operation of law to the extent of the workmen's dues provided there exists secured creditor by contract. If there is no secured creditor then the workmen of the company become unsecured preferential creditors under Section 529-A to the extent of the workmen's dues. The purpose of Section 529-A is to ensure that the workmen should not be deprived of their legitimate claims in the event of the liquidation of the company and the assets of the company would remain charged for the payment of the workers' dues and such charge will be pari passu with the charge of the secured creditors. There is no other statutory provision overriding the claim of the secured creditors except Section 529-A. This section overrides preferential claims under Section 530 also. Under Section 529-A the dues of the workers and debts due to the secured creditors are to be treated pari passu and have to be treated as prior to all other dues.”
44. Thereafter, in Maharashtra State Cooperative Bank Limited (supra), the Hon'ble Court alluded Textile Labour Association (supra) and re-affirmed the afore-extracted view, in paragraph 40 of the said judgment.
45. A year later, in 2011, the Hon'ble Court, in Official Liquidator of Esskay Pharmaceuticals Limited (supra) exhaustively went into the issues relating to the recovery of crown debts juxtaposed against Sections 529/529A of the Companies Act and Section 11(2) of the EPF Act and held that the provisions of the Companies Act and the EPF Act offer a statutory priority to the amounts payable under it notwithstanding the State's claim, thus making it luculent that priority in recovery of the amounts protected by these two Statutes override the ‘First Charge’ claimed by the State or its Revenue under the Taxing Statutes or such other.
46. Finally, in 2013, the Hon'ble Supreme Court, in Jitendra Nath Singh (supra), again considered these issues in the context of certain specific facts relating to the priority in recovery of secured debts and the rights of workmen under Sections 529 and 529A of the Companies Act and emphatically stated as under in paragraphs 14 and 16.2 thereof:
“14. Section 529-A of the Companies Act states that notwithstanding anything contained in any other provision of the Companies Act or any other law for the time being in force, in the winding up of a company - (a) workmen's dues; and (b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to subsection (1) of Section 529 of the Companies Act pari passu with such dues, shall be paid in priority to all other debts. This would mean that the workmen's dues and only the debts due to the secured creditors to the extent such debts rank pari passu with workmen's dues under clause (c) of the proviso to sub-section (1) of Section 529 will have priority over all other debts of the company. The entire object of Section 529-A of the Companies Act is to ensure overriding preferential payment of (a) the workmen's dues and (b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with the workmen's dues. The effect of the non obstante clause in the opening part of Section 529-A of the Companies Act, therefore, is that notwithstanding anything in the Companies Act and any other law including the Insolvency Act, workmen's dues and dues of the secured creditor which could not be realised because of the pari passu charge in favour of the workmen under the proviso to subsection (1) of Section 529 and only to the extent such dues rank pari passu with the dues of the workmen under clause (c) of the said proviso are paid in priority over all other dues.
16.2. Over the security of every secured creditor, a statutory charge has been created in the first limb of the proviso to clause (c) of subsection (1) of Section 529 of the Companies Act in favour of the workmen in respect of their dues from the company and this charge is pari passu with that of the secured creditor and is to the extent of the workmen's portion in relation to the security of any secured creditor of the company as stated in clause (c) of sub-section (3) of Section 529 of the Companies Act.”
47. The above cited judgments certainly support my views as afore and it axiomatically becomes justified for me to hold that Section 26E of the SARFAESI Act and Section 31B of the RDB Act create a ‘First Charge’ by way of a priority to the Banks/Financial Institutions to recover and satisfy their debts, notwithstanding any statutory ‘First Charge’ in favour of the Revenue under the KGST Act/KVAT Act. It is so declared.
48. My conclusions as afore being indited, it, normally, may not have been necessary to evaluate the submissions of the learned Counsel for the Banks/Financial Institutions with respect to the repugnancy between the Statutes involved or the principles of ‘dominant legislation’ and ‘primacy to the Central Legislation under Articles 254 and 246(1) of the Constitution of India’. However, the submission of the Revenue that since Section 26E of the SARFAESI Act has not yet been notified, its provisions cannot be enjoyed by the Banks/Financial Institutions as claimed by them, enjoins me to consider these issues in some depth. As noticed earlier, the learned Additional Advocate General seeks substantial support for the Revenue's claim over the property on the fact that Section 26E of the SARFAESI Act has yet not been notified and this is virtually accepted even by the petitioners. The crucial question, therefore, is whether this factum would enervate the claim of priority of the Banks/Financial Institutions. I am afraid that even this contention of the learned Additional Advocate General cannot be found legally untenable, because it has been unreservedly affirmed by the Hon'ble supreme Court in Mar Appraem Kuri Company Limited (supra) that the concepts of ‘primacy of legilslation’ and ‘repugnancy’ would be invited as soon as the Parliament ‘made’ a Statute, which is to say even before it is notified. The above views of the Hon'ble Court is available in paragraphs 47, 59 and 61 of the judgment, which are excerpted under:
“47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first, by virtue of non obstante clause in Article 246(1); in the second, by reason of Article 254(1).
59. Let us assume for the sake of argument that the State of Kerala were to obtain the assent of the President under Article 254(2) of the Constitution in respect of the insertion of Section 4(1)(a) by the Kerala Finance Act 7 of 2002. Now, Article 254(2) deals with the situation where State legislation is reserved and having obtained the President's assent, prevails in the State over the Central law. However, in view of the proviso to Article 254(2), Parliament could have brought a legislation even to override such assented-to State Finance Act 7 of 2002 without waiting for the Kerala Finance Act 7 of 2002 to be brought into force as the said proviso states that nothing in Article 254(2) shall prevent Parliament from enacting at any time, any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the State Legislature
[emphasis supplied].
61. The entire above discussion on Articles 245, 246, 250 and 251 is only to indicate that the word “made” has to be read in the context of the law-making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement.”
49. The above conclusions of the Hon'ble Court certainly places a lid on this argument made on behalf of the Revenue and in any event of the matter, they themselves concede that Section 31B of the RDB Act has been notified. Hence, even assuming and is taken that Section 26E of the SARFAESI Act cannot apply for want of notification, it would be of no avail to the Revenue, because the provisions of Section 31B of the RDB Act clearly place the right of the secured creditor to proceed against the property as well as their right to recover the secured debts in a position of priority over all tax arrears claimed by the Revenue.
50. That said, solely for the purpose of completing the narrative, if one is to suspect that there is either repugnancy or conflict between the provisions of the KGST Act/KVAT Act on one hand and the SARFAESI Act/RDB Act on the other, it is indubitable from a reading of Santosh Gupta (supra), J.B. Educational Society (supra) and Dipak Debbarma (supra) that in the event of any such or even in the event of incidental encroachment of the provisions of the former into that of the latter under the constitutional mandate of Articles 254 and 246(1) of the Constitution of India, the latter would prevail, since they have been enacted under List II Entry 45 therein. Pertinently, no expatiation on this is required at my hand, since the learned Additional Advocate General concedes to this proposition and admits, as has been recorded ut supra, that even if the Revenue sells the property first, the secured debts will have to be honoured before the tax arrears can be recovered. I, therefore, leave it there.
51. The only remaining question is whether the provisions of the KGST Act/KVAT Act or that of the RR Act can obtain protection under Section 37 of the SARFAESI Act, thus enabling the Revenue to seek that their amounts also be allowed to be recovered complementary to the action of the secured creditors. The answer to this is not difficult to obtain since I have to only read paragraph 39 of the judgment of the Hon'ble Supreme Court in Madras Petrochem Limited (supra), which dispels all doubt that it is not so, while stating as under:
“This is what then brings us to the doctrine of harmonious construction, which is one of the paramount doctrines that is applied in interpreting all statures. Since neither Section 35 nor Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is subject to the other, we think it is necessary to interpret the expression “or any other law for the time being in force” in Section 37. If a literal meaning is given to the said expression, Section 35 will become completely otiose as all other laws will then be in addition to and not in derogation of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002. Obviously this could not have been the parliamentary intendment, after providing in Section 35 that the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 will prevail over all other laws that are inconsistent therewith. A middle ground has, therefore, necessarily to be taken. According to us, the two apparently conflicting sections can best be harmonised by giving meaning to both. This can only be done by limiting the scope of the expression “or any other law for the time being in force” contained in Section 37. This expression will, therefore, have to be held to mean other laws having relation to the securities market only, as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is the only other special law, apart from the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, dealing with recovery of debts due to banks and financial institutions. On this interpretation also, the Sick Industrial Companies (Special Provisions) Act, 1985 will not be included for the obvious reason that its primary objective is to rehabilitate sick industrial companies and not to deal with the securities market.”
52. The position being ineluctably as above, as rightly pointed out by Sri. Madhu Radhakrishnan, the views of the other High Courts in The Indian Overseas Bank (supra) and Axis Bank Limited (supra) persuades me to follow them and hold that a secured creditor, under Section 26E of the SARFAESI Act and Section 31B of the RDB Act, obtains priority over the right claimed by the Revenue both in proceeding against the properties in question or in recovering the secured debt.
53. Before I conclude, I am enjoined to meet the other argument of the learned Additional Advocate General that the judgment of the Hon'ble Supreme Court in Official Liquidator of Esskay Pharmaceuticals Limited (supra) would support the Revenue and that the words ‘First Charge’ mean a better right. The learned Additional Advocate General certainly relies on paragraphs 48, 49 and 50 of the said judgment to assert that even after Sections 529 and 529-A of the Companies Act, 1956 had been brought in, the ‘First Charge’ under Section 11(2) of the EPF Act is not extinguished or overridden. I am afraid that this submission, though may appear appealing at the first look, is completely untenable because the Hon'ble Supreme Court found therein that since the dues to the workmen also enjoy priority under the aforementioned provisions of the Companies Act, the earlier provisions in the EPF Act, namely Section 11(2) thereof, which made such payments a ‘First Charge’ over the property, can only be seen to be fortified and not overridden. The Hon'ble Supreme Court, therefore, clearly assimilated the First Charge of the workmen's dues under the EPF Act and priority in payment of such dues under the Companies Act, concluding that the provisions of Section 11(2) of the EPF Act are only bolstered and supported by the provisions of Sections 529 and 529A of the Companies Act. This view certainly does not support the submissions of the learned Additional Advocate General, since arrears of tax revenue have not been, in any manner, protected either by the SARFAESI Act or by the RDB Act.
54. In the afore circumstances, it becomes needless to say that these writ petitions must succeed.
55. Resultantly,
(a) W.P.(C) No. 28316/2016 is allowed and Exhibits P8 to P10 are quashed, consequentially restraining respondents 1 to 3 from initiating any further action pursuant to these proceedings.
(b) W.P.(C) No. 5899/2017 is allowed and the petitioner is at liberty to proceed against the property involved therein under the provisions of the SARFAESI Act and RDB Act, notwithstanding Exhibit P6 attachment order issued by the first respondent; with a further direction that once the property is sold by the petitioner, the said attachment will be effaced by the competent authority, subject to the right of respondents 1 to 3 to proceed against any surplus after satisfaction of the petitioner's debt.
(c) W.P.(C) No. 31945/2017 is allowed and the second and third respondents are directed to effect transfer of registry of the property involved in this case into the name of the petitioner consequent to the sale certificate issued in her favour by the fourth respondent and to permit her to remit the property tax due thereof; with a consequential direction to the third respondent to efface the attachments, if any, effected on the property by the Revenue thereafter.
(d) W.P.(C) No. 37543/2017 is allowed quashing Exhibit P8 communication issued by the third respondent, with a resultant direction to the said respondent to register Exhibit P7 sale certificate de hors the attachment made by the Revenue and to efface the said attachment thereafter, with liberty being reserved to the Revenue to claim the balance consideration, if any, after the debt of the first respondent Bank is fully paid off.
(e) W.P.(C) No. 37552/2017 is allowed and Exhibits P2 and P3 will stand quashed; with a resultant direction to the second respondent to register Exhibit P1 certificate de hors the attachment made by the Revenue over it and to thereafter efface the said attachment; however, reserving liberty to the Revenue to claim any amounts that may be available in surplus from the sale consideration, after the debt of the petitioner is fully paid off.
(f) W.P.(C) No. 468/2018 is allowed and Exhibit P7 series notices are quashed, thus permitting the petitioner Bank to proceed against the property in question under the SARFAESI Act or RDB Act de hors the attachment made by the Revenue thereon; with a consequential direction to the concerned Sub Registrar to efface the attachment once the sale is over and reserving liberty to the Revenue to proceed against the balance, if any, of the sale consideration after the petitioner's debt is satisfied.
(g) W.P.(C) No. 12849/2018 is allowed and Exhibit P2 will stand quashed, thus leaving full liberty to the petitioner to deal with the property in question under the SARFAESI Act and RDB Act, however, reserving the right of the Revenue to claim the surplus of the sale consideration, if any, once the debt of the petitioner is fully extinguished.
(h) W.P.(C) No. 27147/2018 is allowed declaring that the petitioner is entitled to proceed against the property in question for recovery of their debts de hors the attachment made by respondents 2 to 4 and further directing the said respondents to deliver back possession of the property in question to the petitioner forthwith; leaving liberty to the Revenue to proceed against any surplus that may be available after satisfaction of the petitioner's debt as per law.
(i) W.P.(C) No. 34002/2018 is allowed and the third respondent is directed to register Exhibit P1 sale certificate issued by the first respondent on satisfaction of the requisite stamp duty and other formalities de hors the attachments effected over the property by the Revenue and respondents 6 to 8; with a consequential direction to the third respondent to efface these attachments, leaving liberty to the Revenue and respondents 6 to 8 to pursue their remedies against any surplus that may be available after the debt of the first respondent Bank is fully satisfied.
(j) W.P.(C) No. 34380/2018 is allowed and Exhibit P3 will stand quashed and the fourth respondent is directed to register Exhibit P1 certificate, if not already done, subject to the satisfaction of the requisite stamp duty and all other formalities, with a further direction to the third respondent to effect transfer of registry of the property covered by Exhibit P1 sale certificate in favour of the auction purchaser and to permit him to remit the property tax after registration of the document is completed.
(k) W.P.(C) No. 19639/2019 is allowed and Exhibit P1 will stand quashed, thus permitting the petitioner Bank to proceed against the property in question under the provisions of the SARFAESI Act and RDB Act de hors the attachment that may have been made on it by the Revenue; with an axiomatic declaration that the attachment, if any, made by the Revenue is only subservient to the right of the Bank and therefore, they can only claim the balance sale consideration, if any, after the debt of the petitioner is fully satisfied, consequent to the sale to be conducted by them.
(l) W.P.(C) No. 28962/2017 will stand dismissed in view of the declarations in this judgment.
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