PUNJAB & SIND BANKversusTHE STATE OF PUNJAB & ANR.

                 [2023] 15 S.C.R. 903 : 2023 INSC 1079



                            CASE DETAILS

                        PUNJAB & SIND BANK
                                     v.
                   THE STATE OF PUNJAB & ANR.
                     (Civil Appeal No. 6751 of 2023)
                          DECEMBER 07, 2023
       [ANIRUDDHA BOSE, SUDHANSHU DHULIA AND
            AUGUSTINE GEORGE MASIH, JJ.]
                             HEADNOTES
      Issue for consideration: High Court whether justified in sustaining
the State’s claim of priority in respect of dues under the Punjab Value Added
Tax Act, 2005 of the Respondent no.2 (defaulting borrower), superseding
the bank’s claim based on a charge created over its immovable property.
     Punjab Value Added Tax Act, 2005 – s.35 – Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 – s.35 – Implication – Claim of primacy over the assets of the
defaulting borrower – Bank relied on s.35, 2002 Act – s.35, 2005 Act
however, creates first charge for State’s tax dues – Priority for secured
creditors – Creation of charge/priority on tax dues of a defaulting
borrower to the State, if there was any inconsistency between the 2005
Act and the 2002 Act at the material point of time:
      Held: 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 – s.35 of the 2002
Act does not deal with the issue of creating priority for secured creditors,
which is the specific mandate of s.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 u/s.35 of the 2005 Act, and
is given precedence – Thus, the common law principle of priority of crown
                                    903
904          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


debt, which principle applies against unsecured creditors only would not
apply in this case – Once the aforesaid provisions are examined, sans
s.26E of the 2002 Act, s.35 of the 2005 Act would prevail – No error in
the judgment under appeal – Affirmed – Principle of Priority of Crown
Debt. [Paras 6, 9]
      Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 – s.26E – 2002 Act amended
w.e.f 24.01.2020 upon introduction of s.26E – Operation of s.26E:
      Held: The operation of s.26E of the 2002 Act would be prospective
– In the present case, as the State action had commenced in the year 2014,
the provision of s.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 – Punjab Value Added Tax Act, 2005. [Para 5]

       LIST OF CITATIONS AND OTHER REFERENCES

     Central Bank of India v. State of Kerala & Ors., [2009] 3 SCR 735 :
(2009) 4 SCC 94 – relied on.
      Punjab National Bank v. Union of India & Ors., 2022 INSC 230 –
distinguished.
     Union of India & Ors. v. SICOM Ltd. & Anr., [2008] 17 SCR 120 :
(2009) 2 SCC 121 – held inapplicable.
     Jalgaon Janta Sahakari Bank Ltd. & Anr. v. Joint Commissioner of
Sales Tax Nodal 9, Mumbai & Anr. 2022 (5) Maharashtra Law Journal
691 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6751 of 2023.
     From the Judgment and Order dated 24.04.2015 of the High Court of
Punjab & Haryana at Chandigarh in CWP No.21583 of 2014.
      Appearances:
      Ms. Seema Gupta, Ms. Tina Garg, Advs. for the Appellant.
 PUNJAB & SIND BANK v. THE STATE OF PUNJAB & ANR. 905


     Shadan Farasat, AAG, Ms. Natasha Maheshwari, Karan Bharihoke,
Rishabh Sharma, Advs. for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
      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 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:-
     “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.”
906          SUPREME COURT REPORTS                      [2023] 15 S.C.R.


     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.”
     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.
 PUNJAB & SIND BANK v. THE STATE OF PUNJAB & ANR. 907


      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 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 38-C of Bombay
Sales Tax Act, 1959 and Section 26-B 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 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 38-C 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”
908            SUPREME COURT REPORTS                       [2023] 15 S.C.R.


      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 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.


Headnotes prepared by:                                        Appeal dismissed.
Divya Pandey