Punjab National Bank vs Commercial Tax Officer II and Another

P. Murugesen, J.—The unsuccessful appellant is the petitioner in W.P. No. 4893 of 2004. The said writ petition was filed by the appellant herein for the issuance of a writ of certiorarified mandamus to call for the entire records relating to the impugned notices dated November 26, 2004 and quash the same and forbear the first respondent or his men from claiming the properties under mortgage with the appellant-bank.

The second respondent was sanctioned the cash credit facility to a sum of Rs. 100 lakhs on September 9, 1997 by The Nedungadi Bank. The second respondent, represented by its directors, had executed a promissory note for Rs. 1,00,00,000 on September 25, 1997, promising to repay the loan amount together with interest at the rate of 10.75 per cent over the bank rate with quarterly interest. The second respondent deposited the title deeds with the bank on September 29, 1997 in respect of the properties comprised in R. S. Nos. 271/2, 271/2B and C, 272, 273/9, 274/1, 274/2, 275/ 2, 266/2B, 267, 270/2, 265/5 and 270/1, Andipatti Taluk, Shanmugasunda-ram Village consisting of land and building thereon totally measuring 16.09 acres and created equitable mortgage for repayment of the loan.

The Nedungadi Bank was amalgamated with Punjab National Bank as per the Nedungadi Bank Limited (Amalgamation with Punjab National Bank) Scheme, 2002. The said scheme of amalgamation has been confirmed as per the notification by the Ministry of Finance & Company Affairs, Department of Economic Affairs (Banking Division), Government of India as on February 1, 2003. All the assets and liabilities were taken over by the Punjab National Bank and they have stepped into the shoes with all rights to recover the amount from the debtors of Nedungadi Bank Limited.

As stated earlier, Shree Gayathri Cotton Mills (P) Ltd., (formerly Theni Periandavar Textile Mills (P) Ltd.,)/second respondent availed of cash credit facilities for a sum of Rs. 100 lakhs from Nedungadi Bank, Madurai and executed a cash credit agreement, evidencing the loan transaction. Since the second respondent defaulted in repayment of the loan, the Nedungadi Bank filed an original application before the Debt Recovery Tribunal, Chennai in O. A. No. 75 of 2000 for recovery of a sum of Rs. 1,75,30,743.25 and which is still pending.

The second respondent has not paid the sales tax from the year 1991 to 2001, which is as follows:

Year Arrears 1991-92 ... Rs. 3,55,265 1992-93 ... Rs. 12,23,331 1993-94 ... Rs. 15,30,447 1994-95 ... Rs. 20,25,495 1995-96 ... Rs. 17,91,889 1996-97 ... Rs. 24,77,614 1997-98 ... Rs. 13,17,913 1998-99 ... Rs. 59,453 1999-2000 ... Rs. 39,530 2000-01 ... Rs. 18,619 ___________ Total Rs. 1,08,39,558 6. The second respondent has not paid the abovesaid arrears and for the tax due, a sale notice was issued on November 26, 2004 by the first respondent in Na.Ka. 2460 of 2000. A3 for recovery of arrears of Rs. 1,08,39,558.

Challenging the issuance of sale notice by the first respondent, the appellant-bank filed W. P. No.4893 of 2004 for the issuance of a writ of certiorarified mandamus to call for the entire records of the first respondent in Na.Ka.2460 of 2003.A3, quash the notice dated November 26, 2004 made therein and direct the first respondent or his servants or his subordinates or anybody claiming through the first respondent to forbear from selling the properties under equitable mortgage with the appellant-bank.

The learned single judge, on considering the rival submissions, dismissed the petition by his order dated January 3, 2005 filed by the appellant. Aggrieved over the order of the learned single Judge, the present appeal has been preferred by the appellant-bank.

The learned Counsel for the appellant submitted that the appellant is the secured creditor and the charge u/s 24(2) of the Tamil Nadu General Sales Tax Act, 1959 is not the first charge. Hence, the appellant is having priority over the crown debts. To substantiate his claim, learned Counsel for the appellant relied on the decision in Madras High Court, ICICI Bank Ltd., (formerly Bank of Madura Ltd.) Vs. The Official Liquidator, Liquidator of Vibrant Investments and Properties Ltd. (in liquidation), . In the abovesaid decision, this Court held that the claim of secured creditor will prevail over crown debts and the Income Tax Department cannot claim priority over the debts due to the secured creditor.

The claim of the appellant was resisted by the learned Special Government Pleader for the first respondent. It is the definite stand of the first respondent that the appellant cannot claim priority over the debts due to the Department. It is clear that the assessee was liable from the year 1991 onwards and on the other hand, the second respondent created mortgage on September 25,1997 in favour of the appellant herein. The first respondent claimed priority u/s 24(2) of the TNGST Act. Section 24(2) reads as follows:

24.(2) Any tax assessed on or has become payable by, or any other amount due under this Act from a dealer or person and any fee due from him under this Act, shall, subject to the claim of the Government in respect of land revenue and the claim of the land development bank in regard to the property mortgaged to it u/s 28(2) of the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act 10 of 1934), have priority over all other claims against the property of the said dealer or person and the same may without prejudice to any other mode of collection be recovered:

(a) as land revenue; or

(b) on application to any magistrate, by such magistrate as if it were a fine imposed by him:

Provided that no proceedings for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax, other amount or fee, as the case may be, complied with an order by any of the authorities to whom the dealer or person has appealed or applied for revision, under Sections 31, 31 A, 33, 35, 36, 37 or 38.

Therefore, Section 24(2) of the Act would show that the Commercial Tax Department has got priority over the properties mortgaged and a charge has been created u/s 26(6) of the Act.

In the decision in Central Bank of India v. State of Tamil Nadu [1999] 113 STC 145 (Mad), it is stated that the Section creates a first charge on the property, thus clearly giving priority to the statutory charge over all other charges on the property including the mortgage and the charge operates on the entire property of the dealer including the mortgage therein. It is further stated that the statute has created a first charge on the property of the dealer. What is meant by a first charge? Does it have precedence over an earlier mortgage? Now, as set out in Dattatreya Shanker Mote and Others Vs. Anand Chintaman Datar and Others, , a "charge" is a wider term than a "mortgage". It would cover within its ambit a mortgage also. Therefore, when a first charge is created by operation of law over any property, that charge will have precedence over an existing mortgage.

In the abovesaid decision, this Court has held that the State has got priority in respect of sales tax due over the debts of the secured creditor created by the company.

The learned Counsel for the first respondent would also rely upon the decision in State Bank of Bikaner and Jaipur Vs. National Iron and Steel Rolling Corporation and Others, , wherein it was held that the statutory first charge has precedence over an existing mortgage. In the abovesaid case, the State Bank of Bikaner and Jaipur had given cash credit facilities to the respondents. As a security for repayment of the amounts advanced to the respondents by the appellant-bank, the first respondent created a mortgage of the property. In that case, the appellant-bank filed a civil suit in O.S No. 5 of 1986 in the court of the Additional District Judge No. II, Bharatpur against the respondents for the recovery of a sum of Rs. 3,79,672 due with interest. While the suit was pending, the Commercial Tax Officer, Bharatpur got himself impleaded in the suit on the ground that he had a prior claim for the recovery of a sum of Rs. 1,19,122 as sales tax dues from the respondents and was entitled to realize it by sale of the mortgaged property. The claim of the Commercial Tax Officer, Bharatpur rests on the provisions of Section 11AAAA of the Rajasthan Sales Tax Act, 1954. Section 11AAAA of the Act is as follows:

11AAAA. Liability under this Act to be the first charge.�Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax, penalty, interest and any other sum, 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.

Under this section, the amount of sales tax or any other sum due, payable by a dealer under the Rajasthan Sales Tax Act, 1954 is a first charge on the property of the dealer or such person. The honourable Supreme Court in the above case has held that the first charge is created by operation of law over any property, that charge will have precedence over an existing mortgage and the claim of the bank was dismissed in that case.

u/s 26(6) of the TNGST Act, if the tax remains unpaid, it will be a charge. As per the provisions of Section 26(6) of the Act, any amount which an assessee is required to pay to the assessing authority or for which he is personally liable to the assessing authority, if it remains unpaid, be a charge on the properties of the assessee. It is clear from the provisions of Section 24(2) of the Act, that any tax assessed on or which has become payable under the Act, have priority over all other claims, against the property of the dealer. So, it is evident from the said sections that the claim of the tax department will have priority over other debts.

The appellant took shelter under G.O. Ms. No. 1394, dated December 4, 1990 and claimed that the bank has got priority over the dues to the Commercial Tax Department. In the said G.O., the fourth point would show that the amount payable to the Commercial Tax Department will be a second charge after the loan by the other financial institutions/banks. But the sixth point would show that if the industry fails to pay the deferred amount of sales tax, the Commercial Tax Department may take action as per the provisions of Sales Tax Act. So, in this case, the assessee has not paid the tax, as per the sixth clarification of the said G.O., the Commercial Tax Department can act as per the TNGST Act. The Department has got priority over the other claims. So, the abovesaid G.O., is not helpful to the appellant.

In the decision in Binny Limited, Madras v. Indian Overseas Bank, Ambattur Industrial Estate Branch, Madras [1999] MLJ Supp. 50, this Court has held that the revenue due to the State takes priority over other claims. In that case, the first respondent herein/plaintiff filed a suit for recovery of Rs. 71,047.34 with future interest. The plaintiff-bank is the nationalised bank and the first defendant is a firm in which defendants Nos. 2 to 4 are partners. The firm had availed of bill purchasing facility from the bank subject to the maximum limit of Rs. 5,00,000. The first defendant also executed a power of attorney in favour of plaintiff to collect the proceeds of the bill from the drawees separately. The seventh defendant issued a notice u/s 26 of the Tamil Nadu General Sales Tax Act to pay the amount to it as if there are sales tax arrears from the first defendant. In that case, the decision of the honourable Supreme Court was considered and this Court has held that the Sales Tax Department has got priority over the amounts due to it.

A similar case arose under Kerala General Sales Tax Act, 1963 and the same was Delhi Auto and General Finance Private Limited Vs. Tax Recovery Officer, Income Tax and Others, . Section 23 of the Kerala General Sales Tax Act is similar to Section 24 of the Tamil Nadu General Sales Tax Act and interpreting the same, their Lordships said thus : (page 275)

... it is idle to contend that the appellant has a priority for payment of the amount due to him over the sales tax amount due to the State from the borrower under the Kerala General Sales Tax Act.

The appellant-lender''s contention that he had a priority for payment of the amount due to him over the charge automatically created on the said properties u/s 24 of the TNG ST Act as a result of the borrower''s default in paying the sales tax dues within the prescribed time, is without merit.

Since we have applied the ratio of the decisions of the honourable Supreme Court in State Bank of Bikaner and Jaipur Vs. National Iron and Steel Rolling Corporation and Others, , Delhi Auto and General Finance Private Limited Vs. Tax Recovery Officer, Income Tax and Others, as well as the earlier Division Bench decisions of this Court in Central Bank of India v. State of Tamil Nadu [1999] 113 STC 145 and Binny Limited v. Indian Overseas Bank, Ambattur Industrial Estate Branch [1999] MLJ Supp. 50, which were apposite to the issue involved in this case, we hold that the Division Bench decision of the Madras High Court relied on by the appellant reported in ICICI Bank Ltd., (formerly Bank of Madura Ltd.) Vs. The Official Liquidator, Liquidator of Vibrant Investments and Properties Ltd. (in liquidation), is not applicable to the case.

In the light of the above decision, it is clear that the State has got priority over the claim of the appellant. So, the appellant cannot claim priority over tax dues to the State. Hence, the claim of the appellant is not maintainable and is liable to be rejected.

It is brought to our notice that the paper publication was not given for the sale of property by the Commercial Tax Department. No doubt it is the valuable property. If paper publication is given for sale of the property, it will fetch good price for the properties. So, if the properties are sold for the higher price, after realising the dues to the State, the bank can realise its dues. It will be a wise step for both the parties. Hence, the first respondent/Commercial Tax Department is directed to give wide publication throughout the country for sale of the properties, as per the law.

With the above direction, the writ appeal is disposed of. No costs. Consequently, connected W.A.M.P. is closed.