No Acts & Articles mentioned in this case
2023 INSC 1079 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6751/2023
PUNJAB & SIND BANK …APPELLANT(S)
VERSUS
THE STATE OF PUNJAB & ANR. …RESPONDENT(S)
J U D G M E N T
The Punjab & Sind Bank is in appeal before us against
a judgment of the Punjab & Haryana High Court delivered on
24.04.2015 holding in substance sustaining the State’s claim
of priority in respect of dues under the Punjab Value Added
Tax Act, 2005 (hereinafter called “the 2005 Act”) of a
corporate entity, M/S Sumit Engineering Pvt. Ltd.,
superseding the bank’s claim based on a charge created over
the immovable property of that entity (being respondent no.2
in this appeal). The said respondent, however, goes
unrepresented before us when the appeal is taken up for
2
hearing. The proceeding under Section 13(2) of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter called
“the 2002 Act”) was initiated on 06.09.2013 as the
respondent no.2 had made default in repayment of borrowed
amount, which was in principle approximately Rupees 2.60
crores apart from interest. On the other hand, the sum owed
to the State on account of dues under the 2005 Act was little
above Rupees 4.50 crores.
2. The State claimed first charge over the property. By a
communication dated 23.05.2014, the Assistant Collector
cum Excise and Taxation Officer intimated the Bank of
initiation of proceeding against the respondent no.2 under the
Land Revenue Act, 1887 for recovery of the aforesaid tax
dues. The bank was also apprised of attachment of the
property of the defaulting respondent. The provision of
Section 35 of the 2005 Act was also brought to the notice of
the said respondent. It is a letter which was subject of the
writ petition brought by the bank before the High Court.
Section 35 of the 2005 Act, which stipulates:
3
“35. Notwithstanding anything to the contrary contained in
any contract or law for the time being in force, any amount of
tax, penalty, interest and any other sum, payable by a
taxable, registered or any other person under this Act, shall
be the first charge on the property of such person from the
date on which the amount becomes due and payable.”
3. The bank on the other hand relied on Section 35 of the
2002 Act, in support of their claim of primacy over the assets
of the defaulting borrower. This provision reads:
“The provisions of this Act to override other laws.The
provisions of this Act shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for
the time being in force or any instrument having effect by
virtue of any such law.
4. Notice under Section 13(2) of the 2002 Act was issued
on 06.09.2013. The 2002 Act was subsequently amended
with effect from 24.01.2020 upon introduction of Section 26E.
This provision reads:
“26E. 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.”
4
There is a Full Bench judgment of the Bombay High
Court in the case of Jalgaon Janta Sahakari Bank Ltd. &
Anr. vs. Joint Commissioner of Sales Tax Nodal 9,
Mumbai & Anr., reported in 2022 (5) Maharashtra Law
Journal 691, in which it has been held that the operation of
Section 26E of the 2002 Act would be prospective.
5. As the State action had commenced in the year 2014,
the provision of Section 26E of the 2002 Act would not be
applicable in this case. The said provision, having prospective
effect cannot come to the aid of the bank. Thus, we will have
to examine the implication of Section 35 of the said two
statutes, i.e. the 2002 Act and the 2005 Act.
6. In our opinion, the overriding provision of 2002 Act
does not in any way eclipse the said provision creating first
charge under the State Act. At the material point of time,
there was no inconsistency between the 2005 Act and the
2002 Act, so far as the creation of charge or priority on tax
dues of a defaulting borrower to the State is concerned.
Section 35 of the 2002 Act does not deal with the issue of
creating priority for secured creditors, which is the specific
5
mandate of Section 35 of the 2005 Act. The latter provision
specifically deals with superiority of the State’s claim over
assets of a tax defaulter. The claim of the State, which is in
the nature of crown debt stands statutorily recognised as
superior claim under Section 35 of the 2005 Act, and is given
precedence. Thus, the common law principle of priority of
crown debt, which principle applies against unsecured
creditors only would not apply in this case. Once we examine
the aforesaid provisions, sans Section 26E of the 2002 Act,
Section 35 of the 2005 Act would prevail.
7. We are supported in taking this view from an earlier
judgment of a coordinate Bench of this Court in the case of
Central Bank of India vs. State of Kerala & Ors., reported
in 2009 (4) SCC 94. In the said case, this Court was
examining similar provisions contained in Section 38C of
Bombay Sales Tax Act, 1959 and Section 26B of Kerala
General Sales Tax Act, 1963. In paragraph 116 of the report,
the position of law on this point has been explained:
“116. The non obstante clauses contained in Section 34(1) of
the DRT Act and Section 35 of the Securitisation Act give
overriding effect to the provisions of those Acts only if there
is anything inconsistent contained in any other law or
6
instrument having effect by virtue of any other law. In other
words, if there is no provision in the other enactments which
are inconsistent with the DRT Act or the Securitisation Act,
the provisions contained in those Acts cannot override other
legislations. Section 38C of the Bombay Act and Section 26
B of the Kerala Act also contain non obstante clauses and
give statutory recognition to the priority of the State's charge
over other debts, which was recognised by Indian High
Courts even before 1950. In other words, these sections and
similar provisions contained in other State legislations not
only create first charge on the property of the dealer or any
other person liable to pay sales tax, etc. but also give them
overriding effect over other laws”
8. On behalf of the bank, a judgment of a Coordinate
Bench of this Court in which one of us (Aniruddha Bose J.)
was a member, was relied upon. In that judgment, being the
case of Punjab National Bank vs. Union of India & Ors.
(2022 INSC 230) implication of a provision similar to Section
35 of the 2005 Act was not in issue. That was a case where
bank’s claim was competing with claim of the Union of India
on the basis of confiscation of the assessee’s assets under the
provisions of Section 173 Q(2) of the Central Excise Rules,
1944. Factually, this case is distinguishable. Another
judgment of a coordinate Bench in the case of Union of India
& Ors. vs. SICOM Ltd. & Anr., [(2009) 2 SCC 121] was cited
on behalf of the bank, in which the principle of priority of
7
crown debt was argued. This authority also did not deal with
a specific statutory provision creating first charge for State’s
tax dues as has been stipulated in Section 35 of the 2005 Act.
Thus, ratio of this authority is also not applicable in the facts
of this case.
9.We, accordingly, find no error in the judgment under
appeal and hence affirm the said judgment.
10.The appeal shall stand dismissed in the above terms.
11.Pending application(s), if any, shall stand disposed of.
12.There shall be no order as to the costs.
…………………………...................J.
[ANIRUDDHA BOSE]
…………………………...................J.
[SUDHANSHU DHULIA]
…………………………...................J.
[AUGUSTINE GEORGE MASIH]
New Delhi;
December 07, 2023.
8
ITEM NO.110 COURT NO.6 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(S). 6751/2023
PUNJAB AND SIND BANK APPELLANT(S)
VERSUS
THE STATE OF PUNJAB & ANR. RESPONDENT(S)
Date : 07-12-2023 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
HON'BLE MR. JUSTICE SUDHANSHU DHULIA
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
For Appellant(s) Ms. Seema Gupta, Adv.
Ms. Tina Garg, AOR
For Respondent(s) Mr. Shadan Farasat, AAG
Ms. Natasha Maheshwari, Adv.
Mr. Karan Bharihoke, AOR
Mr. Rishabh Sharma, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed reportable
judgment, which is placed on the file.
Pending application(s), if any, shall stand disposed of.
(NIRMALA NEGI) (VIDYA NEGI)
COURT MASTER (SH) ASSISTANT REGISTRAR
Legal Notes
Add a Note....