{"id":70109,"date":"2010-03-18T00:00:00","date_gmt":"2010-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sicom-limited-vs-state-of-maharashtra-on-18-march-2010"},"modified":"2017-06-04T00:16:07","modified_gmt":"2017-06-03T18:46:07","slug":"sicom-limited-vs-state-of-maharashtra-on-18-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sicom-limited-vs-state-of-maharashtra-on-18-march-2010","title":{"rendered":"Sicom Limited vs State Of Maharashtra on 18 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sicom Limited vs State Of Maharashtra on 18 March, 2010<\/div>\n
Bench: D.K. Deshmukh, V.R. Kingaonkar<\/div>\n
                                    1\n\n       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n         ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                           \n                                   \n                 APPEAL NO.658 OF 2004\n                           IN\n          COMPANY APPLICATION NO.540 OF 2002\n                          IN\n\n\n\n\n                                  \n            COMPANY PETITION NO.476 OF 1993\n                          ...\n<\/pre>\n
     SICOM Limited                  …Appellants<\/p>\n
             v\/s.ig\n<\/p>\n
     1.State of Maharashtra
\n       through the Asst.Commissioner<\/p>\n
       of Sales Tax\n<\/p>\n
     2.OL of Konkan Steel Ltd.     …Respondents<\/p>\n
                          …\n<\/p>\n
     Mr.V.R.Dhond     with    Mr.R.S.Kelkar     i\/b<\/p>\n
     M\/s.Prakash Panjabi & Co. for the Appellants.\n<\/p>\n
     Mr.A.A.Kumbhakoni with     Ms.Geeta       Shastri,AGP
\n     for Respondent No.1.\n<\/p>\n
                          WITH<\/p>\n
                  APPEAL NO.5 OF 2008<\/p>\n
                           IN
\n          COMPANY APPLICATION NO.101 OF 2002
\n                          IN
\n            COMPANY PETITION NO.976 OF 1998<\/p>\n
                          …\n<\/p>\n
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\n                                              2<\/span><\/p>\n
     The Thane Janata Sahakari Bank
\n     Ltd.                          …Appellants<\/p>\n
              v\/s.\n<\/p>\n
     1.State of Maharashtra
\n       through the Asst.Commissioner
\n       of Sales Tax\n<\/p>\n
     2.OL of M\/s.United Airtech<\/p>\n
       Pvt.Ltd.                    …Respondents
\n                    ig           …\n<\/p>\n
     Mr.R.S.Apte, Sr.Advocate i\/b Mandar Limaye<\/p>\n
     for Apellants.\n<\/p>\n
     Mr.A.A.Kumbhakoni with Ms.Geeta Shastri, AGP
\n     for State.\n<\/p>\n
                         …\n<\/p>\n
                                 CORAM: D.K.DESHMUKH &<\/p>\n
                                        V.R.KINGAONKAR,JJ
\n                                 DATED: 18th March, 2010<\/p>\n
     P.C.:(PER D.K.DESHMUKH,J.)<\/p>\n
     1.       These      Appeals       can       be    conveniently<\/p>\n
     disposed of by a common order, because the<\/p>\n
     challenge     in   these    Appeals         is   to      the      same<\/p>\n
     order.   In    these       Appeals      the       order         dated<\/p>\n
     7-2-2004 passed by the learned single Judge<\/p>\n
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\n                                              3<\/span><\/p>\n
     in      following        Company        Applications                  is<\/p>\n
     challenged.\n<\/p>\n
             C.A.No.312 OF 2001 IN C.P.NO.712 OF 1997<\/p>\n
                               WITH
\n              C.A.NO.421 OF 2001 IN C.P.NO.438 OF 1990
\n                               WITH
\n              C.A.NO.447 OF 2001 IN C.P.NO.448 OF 1990
\n                               WITH<\/p>\n
              C.A.No.600 OF 2002 IN C.P.NO.253 OF 1993
\n                               WITH
\n              C.A.NO.540 OF 2002 IN C.P.NO.476 OF 1993
\n                               WITH
\n              C.A.NO.278 OF 2002 IN C.P.NO.492 OF 1992<\/p>\n
                               WITH
\n              C.A.No.101 OF 2002 IN C.P.NO.976 OF 1998
\n                    ig         WITH
\n             C.A.NO.492 OF 2002 IN C.P.NO.1145 OF 2000
\n                               WITH
\n              C.A.NO.135 OF 2002 IN C.P.NO.348 OF 1993<\/p>\n
                               WITH
\n              C.A.NO.347 OF 2001 IN C.P.NO.669 OF 1998
\n                                AND
\n              C.A.NO.264 OF 2003 IN C.P.NO.521 OF 1992<\/p>\n
     2.         Though,       it   is   a   common       order,          the<\/p>\n
     order    which      is    challenged        in       these          two<\/p>\n
     Appeals was made in Company Application No.<\/p>\n
     540 of 2002 and Company Application No.101 of<\/p>\n
     2002. Both these Applications were filed by<\/p>\n
     the State of Maharashtra for recovery of the<\/p>\n
     amounts which were due to it from the company<\/p>\n
     under liquidation             under the Sales Tax Act.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:43:49 :::<\/span>
\n                                                  4<\/span><\/p>\n
     The claim of the State Government was that<\/p>\n
     the State Government is entitled to recover<\/p>\n
     the amount in question in preference to the<\/p>\n
     claim    of     any    other      creditor        including             the<\/p>\n
     secured       creditors      and     workers.           It      appears<\/p>\n
     that, thereafter, at the hearing the relief<\/p>\n
     sought was modified and it was claimed that<\/p>\n
     the     Court     should       direct       that         the        State<\/p>\n
     Government is entitled to recover its dues as<\/p>\n
     secured       creditors            pari-pasu               with         the<\/p>\n
     secured    creditors         and    workers.          The       learned<\/p>\n
     single Judge has granted that application of<\/p>\n
     the State Government. The Appellant in Appeal<\/p>\n
     No.658 of 2004 is SICOM, which is admittedly<\/p>\n
     a secured creditor governed by the provisions<\/p>\n
     of    Section     529-A      of     the   Companies             Act       in<\/p>\n
     relation to the company under liquidation and<\/p>\n
     the Appellant in Appeal No.5 of 2008                                 is a<\/p>\n
     Co.operative          Bank     which      is       also         secured<\/p>\n
     creditor        governed       by     the       provisions                of<\/p>\n
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\n                                                5<\/span><\/p>\n
     Section      529-A    in    relation          to    the       company<\/p>\n
     under liquidation.\n<\/p>\n
     3.          There is no dispute before us that<\/p>\n
     the      provisions        of      Section            529-A           are<\/p>\n
     applicable in relation to the dues of both<\/p>\n
     the Appellants. It was claimed, however, on<\/p>\n
     behalf of the State Government that because<\/p>\n
     of    the<\/p>\n
                 provisions      of    Section          38(C)       of     the<\/p>\n
     Bombay      Sales-tax      Act    statutorily           the       State<\/p>\n
     Government      becomes      a    secured          creditor           and<\/p>\n
     therefore, it is entitled to payment of its<\/p>\n
     dues alongwith the secured creditors and the<\/p>\n
     workers.       This     contention            of      the         State<\/p>\n
     Government      has   been       upheld       by    the       learned<\/p>\n
     single Judge.\n<\/p>\n
     4.          The learned Counsel appearing for the<\/p>\n
     Appellants      relying      on    the    judgment             of     the<\/p>\n
     Supreme Court in the case of Central Bank of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:43:49 :::<\/span>
\n                                                    6<\/span><\/p>\n
     India v\/s. State of Kerala & ors., (2009) 4<\/p>\n
     SCC 94 submits that the Supreme Court in this<\/p>\n
     judgment has considered the entire law on the<\/p>\n
     subject and has held that to a property in<\/p>\n
     relation to which provisions of Section 529-A<\/p>\n
     of the Companies Act operates, Section 38(c)<\/p>\n
     of the Bombay Sales-tax Act does not operate.\n<\/p>\n
     The learned counsel relying on the judgment<\/p>\n
     of    the<\/p>\n
                  Constitution         Bench           of    the       Supreme<\/p>\n
     Court       in     the     case        of     Builders              Supply<\/p>\n
     Corporation v\/s. Union of India, (1965) 2 SCR<\/p>\n
     289 submits that the provisions of the Land<\/p>\n
     Revenue Code which provide for recovery of<\/p>\n
     the dues of the State Government as arrears<\/p>\n
     of land revenue does not elevate the dues to<\/p>\n
     the     level      of     dues    of        land       revenue.           The<\/p>\n
     learned Counsel therefore submitted that the<\/p>\n
     learned          single     Judge           has        misread            the<\/p>\n
     provisions         of     the    Companies             Act      and       the<\/p>\n
     Bombay Sales-tax Act.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:43:49 :::<\/span>
\n                                             7<\/span><\/p>\n
     5.         The learned Counsel appearing for the<\/p>\n
     Respondent-State          Government,       on       the        other<\/p>\n
     hand,    relied      on    the   observations              in     the<\/p>\n
     Judgment of the Division Bench of this Court<\/p>\n
     in the case of The Thane Janata Sahakari Bank<\/p>\n
     Ltd.    v\/s.   The   Commissioner          of    Sales       Tax      &<\/p>\n
     anr. Dated 18th April, 2006 to contend that by<\/p>\n
     operation of Section 38(c) charge in favour<\/p>\n
     of State Government is created and therefore<\/p>\n
     under    the   provisions        of   the       Land       Revenue<\/p>\n
     Code, the dues of the State Government under<\/p>\n
     the     Sales-tax     becomes      dues         of   the         Land<\/p>\n
     Revenue and therefore, are paramount charge<\/p>\n
     on a property. The learned Counsel pointed<\/p>\n
     out     that the judgment of the Division Bench<\/p>\n
     in Thane Janata Sahakari Bank Ltd., has been<\/p>\n
     considered and approved by the Supreme Court<\/p>\n
     in its judgment in the case of Central Bank<\/p>\n
     of India, referred to above.\n<\/p>\n
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\n                                              8<\/span><\/p>\n
     6.          It    is    common    ground     before          us,      as<\/p>\n
     observed above, that both the Appellants are<\/p>\n
     covered by the provisions of Section 529-A &<\/p>\n
     Section     530    of    the     Companies      Act.        Section<\/p>\n
     529-A   &    Section      530     of   the    Companies             Act<\/p>\n
     reads as under:-\n<\/p>\n
                 529-A<\/p>\n
                 payment.-\n<\/p><\/blockquote>\n
                           Overriding      preferential
\n                             Notwithstanding   anything
\n                 contained in any other provision of<\/p>\n
                 this Act or any other law for the
\n                 time being in force, in the winding
\n                 up of a company-\n<\/p><\/blockquote>\n
                     (a) workmen s dues; and\n<\/p><\/blockquote>\n
                     (b)   debts    due   to  secured<\/p>\n
                 creditors to the extent such debts
\n                 rank under clause (c) of the proviso
\n                 to sub-section (1) of section 529
\n                 pari passu with such dues,<\/p>\n
                 shall be paid          in   priority            to      all
\n                 other debts.\n<\/p><\/blockquote>\n
                 (2) The debts payable under clause<\/p>\n<\/blockquote>\n
                 (a) and clause (b) of sub-section (1)
\n                 shall be paid in full, unless the
\n                 assets are insufficient to meet them,
\n                 in which case they shall abate in
\n                 equal proportions.\n<\/p><\/blockquote>\n
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\n                           9<\/span><\/p>\n
      530. Preferential payments.-\n<\/p>\n
      (1) In a winding up 1[subject to the<\/p>\n
      provisions of section 529A, there
\n      shall be paid] in priority to all<\/p>\n
      other debts-\n<\/p>\n
      (a) all revenues taxes, cesses and
\n      rates due from the company to the<\/p>\n
      Central or a State Government or to a
\n      local authority at the relevant date
\n      as defined in clause (c) of sub-
\n      section (8), and having become due<\/p>\n
      and payable within the twelve months
\n      next      before      that      date;\n<\/p>\n
      (b) all wages or salary (including
\n      wages payable for time or piece work<\/p>\n
      and salary earned wholly or in part
\n      by   way   of  commission)   of   any
\n      employee, in respect of services
\n      rendered to the company and due for a
\n      period not exceeding four months<\/p>\n
      within the twelve months next before
\n      the relevant date 2[***] subject to<\/p>\n
      the limit specified in sub-section
\n      (2);\n<\/p>\n
      (c) all accrued holiday remuneration
\n      becoming payable to any employee, or
\n      in the case of his death to any other
\n      person   in   his   right,    on   the
\n      termination of his employment before<\/p>\n
      or by the effect of, the winding up
\n      order          or          resolution;\n<\/p>\n
      (d) unless the company is being wound
\n      up   voluntarily   merely   for   the
\n      purposes of reconstruction or of
\n      amalgamation with another company,<\/p>\n
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\n                          10<\/span><\/p>\n
      all amounts due, in respect of
\n      contributions   payable  during   the
\n      twelve   months   next  before    the<\/p>\n
      relevant date, by the company as the
\n      employer of any persons, under the<\/p>\n
      Employees State Insurance Act, 1948
\n      (34 of 1948), or any other law for
\n      the    time     being   in     force;\n<\/p>\n
      (e) unless the company is being wound
\n      up   voluntarily   merely   for   the
\n      purposes of reconstruction or of
\n      amalgamation with another company, or
\n      unless the company has, at the<\/p>\n
      commencement of the winding up, under
\n      such a contract with insurers as is<\/p>\n
      mentioned in section 14 of the
\n      Workmen’s Compensation Act, 1923 (8
\n      of 1923), rights capable of being<\/p>\n
      transferred to and vested in the
\n      workman, all amounts due in respect
\n      of any compensation or liability for
\n      compensation under the said Act in<\/p>\n
      respect of the death or disablement
\n      of any employee of the company;\n<\/p>\n
      (f) all sums due to any employee from
\n      a provident fund, a pension fund, a
\n      gratuity fund or any other fund for<\/p>\n
      the   welfare    of   the   employees
\n      maintained   by   the  company;   and<\/p>\n
      (g) the expenses of any investigation
\n      held in pursuance of section 235 or<\/p>\n
      237, in so far as they are payable by
\n      the company.\n<\/p>\n
      (2) The sum to which priority is to
\n      be   given  under  clause   (b)  of
\n      subsection (1), shall not, in the<\/p>\n
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\n                          11<\/span><\/p>\n
      case of any one claimant, 3[exceed
\n      such sum as may be notified by the
\n      Central Government in the Official<\/p>\n
      Gazette].\n<\/p>\n
      4[***]<\/p>\n
      (3) Where any compensation under the
\n      Workmen’s Compensation Act, 1923 (8<\/p>\n
      of 1923), is a weekly payment, the
\n      amount due in respect thereof shall,
\n      for the purposes of clause (e) of
\n      sub-section (1), be taken to be the<\/p>\n
      amount of the lump sum for which the
\n      weekly payment could, if redeemable,<\/p>\n
      the<\/p>\n
      be redeemed if the employer made an
\n      application for that purpose under
\n                  said        Act.\n<\/p>\n
      (4) Where any payment has been made
\n      to any employee of a company-\n<\/p>\n
      (i) on account of wages or salary; or<\/p>\n
      (ii) to him, or in the case of his<\/p>\n
      death, to any other person in his
\n      right, on account of accrued holiday
\n      remuneration,<\/p>\n
      out of money advanced by some person
\n      for that purpose, the person by whom
\n      the money was advanced shall, in a
\n      winding up, have a right of priority
\n      in respect of the money so advanced<\/p>\n
      and paid, up to the amount by which
\n      the sum in respect of which the
\n      employee or other person in his right
\n      would have been entitled to priority
\n      in the winding up has been diminished
\n      by reason of the payment having been
\n      made.\n<\/p>\n
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\n                           12<\/span><\/p>\n
      (5) The foregoing debts shall-\n<\/p>\n
      (a) rank equally among themselves and
\n      be paid in full, unless the assets
\n      are insufficient to meet them, in<\/p>\n
      which case they shall abate in equal
\n      proportions;and<\/p>\n
      (b) so far as the assets of the<\/p>\n
      company available for payment of
\n      general creditors are insufficient to
\n      meet them, have priority over the
\n      claims of holders of debentures under<\/p>\n
      any floating charge created by the
\n      company, and be paid accordingly out<\/p>\n
      of any property comprised in or
\n      subject to that charge.\n<\/p>\n
      (6) Subject to the retention of such
\n      sums as may be necessary for the
\n      costs and expenses of the winding up,
\n      the   foregoing    debts   shall   be
\n      discharged forthwith so far as the<\/p>\n
      assets are sufficient to meet them,
\n      and in the case of the debts to which<\/p>\n
      priority is given by clause (d) of
\n      sub-section (1), formal proof thereof
\n      shall not be required except in so<\/p>\n
      far as may be otherwise prescribed.\n<\/p>\n
      (7) In the event of a landlord or
\n      other person distraining or having
\n      distrained on any goods or effects of
\n      the company within three months next<\/p>\n
      before the date of a winding up
\n      order, the debts to which priority is
\n      given by this section shall be a
\n      first charge on the goods or effect
\n      so distrained on, or the proceeds of
\n      the           sale           thereof:\n<\/p>\n
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\n                            13<\/span><\/p>\n
      Provided that, in respect of any
\n      money paid under any such charge, the<\/p>\n
      landlord or other person shall have
\n      the same rights of priority as the<\/p>\n
      person to whom the payment is made.\n<\/p>\n
      (8) For the purposes of this section-\n<\/p>\n
      (a) any remuneration in respect of a<\/p>\n
      period of holiday or of absence from
\n      work through sickness or other good
\n      cause shall be deemed to be wages in
\n      respect of services rendered to the<\/p>\n
      if   company  during   that  period;\n<\/p>\n
      (b) the expression “accrued holiday
\n      remuneration” includes, in relation
\n      to any person, all sums which, by<\/p>\n
      virtue either of his contract of
\n      employment    or    of    any  enactment
\n      (including     any     order   made   or
\n      direction given under any enactment),
\n      are   payable    on    account   of  the<\/p>\n
      remuneration which would, in the<\/p>\n
      ordinary course, have become payable
\n      to him in respect of a period of
\n      holiday, had his employment with the
\n      company continued until he became<\/p>\n
      entitled to be allowed the holiday;\n<\/p>\n
      5[***)<\/p>\n
      6[(bb)    the expression “employees”\n<\/p>\n
      does   not include a workman; and]<\/p>\n
      (c) the expression        “the         relevant
\n      date” means-\n<\/p>\n
      (i) in the case of a company ordered
\n      to be wound up compulsorily, the date<\/p>\n
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\n                                             14<\/span><\/p>\n
                of   the    appointment   (or   first
\n                appointment)    of    a   provisional
\n                liquidator, or if no such appointment<\/p>\n
                was made, the date of the winding up
\n                order, unless in either case the<\/p>\n
                company had commenced to be wound up
\n                voluntarily before that date; and<\/p>\n
                (ii) in any case where sub-clause (i)<\/p>\n
                does not apply, the date of the
\n                passing of the resolution for the
\n                voluntary winding up of the company.\n<\/p>\n
                (9) This section shall not apply in<\/p>\n
                the case of a winding up where the
\n                date referred to in sub-section (5)<\/p>\n
                of   section  230   of   the  Indian
\n                Companies Act, 1913 (7 of 1913),
\n                occurred before the commencement of<\/p>\n
                this Act, and in such a case, the
\n                provisions relating to preferential
\n                payments which would have applied if
\n                this Act had not been passed, shall<\/p>\n
                be deemed to remain in full force.\n<\/p>\n
     7.         Perusal     of        the         above           quoted<\/p>\n
     provisions of the Companies Act shows that a<\/p>\n
     debt due to the secured creditors is entitled<\/p>\n
     to   be   paid   on   priority     basis.          Perusal           of<\/p>\n
     Section 530 of the Companies Act shows that<\/p>\n
     so far as payment on account of revenue and<\/p>\n
     taxes     is   concerned,   it    is        subject        to      the<\/p>\n
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\n                                                15<\/span><\/p>\n
     provisions of Section 529-A of the Act and<\/p>\n
     therefore, combined reading of Section 529-A<\/p>\n
     and Section 530 will make it clear that the<\/p>\n
     Companies Act contains provisions which give<\/p>\n
     priority to the dues of the secured creditors<\/p>\n
     to whom the provisions of Section 529A are<\/p>\n
     applicable over the revenue demand. In this<\/p>\n
     behalf    we     have    to     see     the     provisions              of<\/p>\n
     Section    38C
\n                     ig of    the    Sales-tax        Act       on      which<\/p>\n
     reliance    is     placed      on   behalf       of      the       State<\/p>\n
     Government. Section 38C of the Sales-tax Act<\/p>\n
     reads as under:\n<\/p>\n
                38C. Liability under this Act to be<\/p>\n
                first          charge.-             Notwithstanding<\/p>\n
                anything contained in any contract to<\/p>\n
                the     contrary         but   subject             to      any<\/p>\n
                provision regarding first charge in<\/p>\n
                any Central Act for the time being in<\/p>\n
                force,       any    amount     of    tax,        penalty,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                                     16<\/span><\/p>\n
                   interest or any other sum, payable by<\/p>\n
                   a dealer or any other person under<\/p>\n
                   this Act, shall be the first charge<\/p>\n
                   on the property of the dealer, or, as<\/p>\n
                   the case may be, person.”]<\/p>\n<\/blockquote>\n
     8.            Perusal of the provisions of Section<\/p>\n
     38C     of     the      Sales-tax        Act        shows        that        it<\/p>\n
     operates        to
\n                       ig     create     first           charge         on      the<\/p>\n
     property of the dealer. Creation of the first<\/p>\n
     charge on the property of the dealer for the<\/p>\n
     dues of the State Government towards sales-\n<\/p>\n
     tax    is     subject      to     there   being           no     contrary<\/p>\n
     provision            in     any       Central                Enactment.\n<\/p>\n
     Therefore, if there is a Central Enactment<\/p>\n
     containing          a      provisions          for       creation            of<\/p>\n
     first        charge,      then     Section           38C       will        not<\/p>\n
     operate.       If       Section    38C    does           not     operate,<\/p>\n
     then    there        is   no     question           of   Section           38C<\/p>\n
     creating any right whatsoever in favour of<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                                      17<\/span><\/p>\n
     the     State      Government          in       relation              to     the<\/p>\n
     property concerned. Section 38C by no stretch<\/p>\n
     of imagination can operate to create a right<\/p>\n
     in favour of the State Government, which will<\/p>\n
     be    equal     to    any    right       created            by        Central<\/p>\n
     enactment.           Because      operation                 of        Central<\/p>\n
     enactment       creating        any         right          of     priority<\/p>\n
     totally       displaces        Section               38C.        In        other<\/p>\n
     words,<\/p>\n
                Section       38C      and        Central             enactment<\/p>\n
     containing contrary provisions do not exist<\/p>\n
     and    operate       side    by     side.            If    the        Central<\/p>\n
     Enactment       operates,           then         Section           38C        is<\/p>\n
     totally       displaced.          In        our           opinion,           the<\/p>\n
     learned       single        Judge           clearly              erred        in<\/p>\n
     holding       that     though       Section               529A        of     the<\/p>\n
     Companies Act operates, Section 38C of the<\/p>\n
     Sales-tax Act also operates. If Section 529A<\/p>\n
     which     is       the      Central             Enactment              giving<\/p>\n
     priority to the secured creditors and workers<\/p>\n
     operates      in     relation       to      a    property             of     the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                            18<\/span><\/p>\n
     company,     then     provisions       of      Section            38C<\/p>\n
     giving priority to the State Government will<\/p>\n
     not operate in relation to that property.\n<\/p>\n
     9.         It is further to be seen here that if<\/p>\n
     Section 38C does not operate in relation to a<\/p>\n
     property of the Company because of operation<\/p>\n
     of   Section   529A,      then   by   operation            of     the<\/p>\n
     provisions<\/p>\n
                    of   the    Maharashtra        Land        Revenue<\/p>\n
     Code, there is no change brought about in the<\/p>\n
     situation. In our opinion, the provisions of<\/p>\n
     Section 169 of the Maharashtra Land Revenue<\/p>\n
     Code   makes    the    position       absolutely            clear.\n<\/p>\n
     Section 169 of the Maharashtra Land Revenue<\/p>\n
     Code reads as under:\n<\/p>\n
                169.      Claims of State Government
\n                to have precedence over all others:-\n<\/p><\/blockquote>\n
                (1) The arrears of land revenue due
\n                on account of land shall be a
\n                paramount charge on the land and on
\n                every part thereof and shall have
\n                precedence  over  any  other  debt,<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                                  19<\/span><\/p>\n
                demand or claim whatsoever, whether
\n                in respect of mortgage judgment-
\n                decree, execution or attachment, or<\/p>\n
                otherwise howsoever, against any land
\n                or the holder thereof.\n<\/p><\/blockquote>\n
                (2)       the claim of the State
\n                Government to any monies other than
\n                arrears   of    land   revenue,   but<\/p>\n
                recoverable as a revenue demand under
\n                the provisions of this Chapter, shall
\n                have priority over all unsecured
\n                claims against any land or holder
\n                thereof.\n<\/p><\/blockquote>\n
     10.        Perusal
\n                   ig           of        the         above            quoted<\/p>\n
     provisions       shows   that        the    Maharashtra               Land<\/p>\n
     Revenue     Code     makes        a        clear        distinction<\/p>\n
     between    the    sum    which        is    recoverable              as     a<\/p>\n
     land revenue and sum which is recoverable as<\/p>\n
     arrears     of     land         revenue.          What          creates<\/p>\n
     paramount    charge       is     the       sum    which         is      the<\/p>\n
     amount of land revenue and not the sum which<\/p>\n
     is    recoverable          as        land        revenue.               The<\/p>\n
     Constitution Bench of the Supreme Court in<\/p>\n
     its judgment in the case of Builders Supply<\/p>\n
     Corporation,       referred           to     above,            in       our<\/p>\n
     opinion,    has     made       the     position           absolutely<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                   20<\/span><\/p>\n
     clear. Following observations in the case of<\/p>\n
     Builders Supply Corporation, in our opinion,<\/p>\n
     are relevant. They read as under:-\n<\/p>\n
                  We    have    referred    to  this\n\n\n\n\n                                 \n             decision,    because   it   brings  out\n<\/pre>\n
             emphatically the real character of
\n             the provisions prescribed by s.46(2).
\n             Section 46(2) does not deal with the
\n             doctrine of the priority of Crown<\/p>\n
             debts at all; it merely provides for
\n             the recovery of the arrears of tax<\/p>\n
             due from an assessee as if it were an
\n             arrear    of    land    revenue.   This
\n             provisions cannot be said to convert<\/p>\n
             arrears of tax into arrears of land
\n             revenue either, all that it purports
\n             to do is to indicate that after
\n             receiving the certificate from the<\/p>\n
             Income-tax Officer, the Collector has
\n             to proceed to recover the arrears in<\/p>\n
             question as if the said arrears were
\n             arrears of land revenue. We have
\n             already seen that other alternative
\n             remedies for the recovery of arrears<\/p>\n
             of land revenue are prescribed by
\n             sub-sections (3) and (5) of s.46. In
\n             making a provision for the recovery
\n             of arrears of tax, it cannot be said
\n             that s.46 deals with or provides for<\/p>\n
             the principle of priority of tax dues
\n             at all; and so, it is impossible to
\n             accede to the argument that s.46 in
\n             terms displaces the application of
\n             the said doctrine in the present
\n             proceedings.\n<\/p>\n
                                  ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                                  21<\/span><\/p>\n
     11.       The learned Counsel appearing for the<\/p>\n
     State Government relied on                  observations made<\/p>\n
     in the judgment of the Division Bench in The<\/p>\n
     Thane Janata Sahakari Bank Ltd. s case, in<\/p>\n
     that case the Court was not considering the<\/p>\n
     situation whether the provisions of Section<\/p>\n
     529-A    of   the
\n                    ig     Companies         Act        operate.             The<\/p>\n
     Division Bench in that case was considering<\/p>\n
     the     question      whether          in        view         of        the<\/p>\n
     provisions      of    the       Securitisation                Act       and<\/p>\n
     D.R.T.Act,      the       provisions         of      Section            38C<\/p>\n
     apply. The Court held that the provisions of<\/p>\n
     the   Securitisation            Act    do     not       create          any<\/p>\n
     first    charge      in     favour     of        the      Banks         and<\/p>\n
     financial institutions. In other words, the<\/p>\n
     Securitisation            Act    does         not         have          any<\/p>\n
     provisions which will displace operation of<\/p>\n
     the provisions of Section 38C of the Bombay<\/p>\n
     Sales     Tax        Act.        The        Division              Bench,<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                            22<\/span><\/p>\n
     thereafter,      held     that    because       Section           38C<\/p>\n
     operates, the amount of sales-tax is elevated<\/p>\n
     to    the    level   of   dues   of   land      revenue           and<\/p>\n
     therefore under the Maharashtra Revenue Code<\/p>\n
     it    becomes    paramount       charge.      The       Division<\/p>\n
     Bench in this case was not considering the<\/p>\n
     case, where Section 38C does not operate. So<\/p>\n
     far as the judgment of the Supreme Court in<\/p>\n
     Central<\/p>\n
                   Bank of India is concerned, there<\/p>\n
     also the Supreme Court was considering the<\/p>\n
     provisions of the Securitisation Act vis-a-\n<\/p>\n
     vis    the    provisions    of    Section        38C      of      the<\/p>\n
     Bombay Sales Tax Act and other paramateria<\/p>\n
     provisions. In our opinion, paragraph 148 of<\/p>\n
     that judgment makes the position clear.\n<\/p>\n
                   148.   After decree of the suit,
\n                  the appellant along with IFCI and<\/p>\n
                  IDBI filed an application before the
\n                  Company Judge for consideration of
\n                  their claim on pro rata basis and
\n                  also for exclusion of the claim of
\n                  Punjab National Bank. The learned
\n                  Company  Judge  allowed   the  first<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                           23<\/span><\/p>\n
      prayer of the appellant but declined
\n      the second one by relying upon the
\n      judgment in Allahabad Bank’s case<\/p>\n
      (supra). The intra-court appeal was
\n      dismissed by the Division Bench by<\/p>\n
      relying   upon   the  provisions   of
\n      Section 529A. On further appeal, this
\n      Court referred to the judgment in
\n      Allahabad Bank’s case (supra) as also<\/p>\n
      Rajasthan State Financial Corporation
\n      v.\n<\/p>\n
      Official Liquidator [(2005) 8 SCC
\n      190] and held:\n<\/p>\n
      “32. Allahabad Bank therefore, is not<\/p>\n
      an authority for the proposition that
\n      in terms of Section 529-A of the
\n      Companies Act the distinction between<\/p>\n
      two classes of secured creditors does
\n      no longer survive. The High Court,
\n      thus, in our considered opinion, was
\n      not correct in that behalf.\n<\/p>\n
      33. In fact in Allahabad Bank it was
\n      categorically     held    that     the<\/p>\n
      adjudication officer would have such
\n      powers   to   distribute   the    sale
\n      proceeds to the banks and financial
\n      institutions,       being      secured<\/p>\n
      creditors, in accordance with inter
\n      se agreement\/arrangement between them
\n      and to the other persons entitled
\n      thereto   in   accordance   with   the
\n      priority in law.\n<\/p>\n
      34. Section 529-A of the Companies
\n      Act no doubt contains a non obstante
\n      clause   but   in   construing   the
\n      provisions thereof, it is necessary<\/p>\n
                          ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                          24<\/span><\/p>\n
      to determine the purport and object
\n      for which the same was enacted.\n<\/p>\n
      35. In terms of Section 529 of the
\n      Companies Act, as it stood prior to
\n      its amendment, the dues of the<\/p>\n
      workmen were not treated pari passu
\n      with the secured creditors as a
\n      result whereof innumerable instances
\n      came to the notice of the Court that<\/p>\n
      the workers may not get anything
\n      after discharging the debts of the
\n      secured creditors. It is only with a
\n      view to bring the workmen’s dues pari<\/p>\n
      passu with the secured creditors,
\n      that Section 529-A was enacted.\n<\/p>\n
      36. The non obstante nature of a
\n      provision although may be of wide<\/p>\n
      amplitude, the interpretative process
\n      thereof must be kept confined to the
\n      legislative policy. Only because the
\n      dues of the workmen and the debts due<\/p>\n
      to the secured creditors are treated
\n      pari passu with each other, the same<\/p>\n
      by itself, in our considered view,
\n      would not lead to the conclusion that
\n      the concept of inter se priorities
\n      amongst the secured creditors had<\/p>\n
      thereby been intended to be given a
\n      total go-by.\n<\/p>\n
      37. A non obstante clause must be<\/p>\n
      given effect to, to the extent
\n      Parliament intended and not beyond
\n      the same.\n<\/p>\n
      38. Section 529-A of the Companies
\n      Act does not ex facie contain a
\n      provision (on the aspect of priority)<\/p>\n
                          ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                         25<\/span><\/p>\n
               amongst the secured creditors and,
\n               hence, it would not be proper to read
\n               there into things, which Parliament<\/p>\n
               did not comprehend.”\n<\/p>\n
     12.       The above observations make it clear<\/p>\n
     that by operation of Section 529-A, priority<\/p>\n
     is given to the dues of the secured creditors<\/p>\n
     and   workers    over    State     first           statutory<\/p>\n
     charge.    In    this    view     of       the         matter,<\/p>\n
     therefore, in our opinion, the learned single<\/p>\n
     Judge was not justified in holding that dues<\/p>\n
     of the State Government are recoverable pari<\/p>\n
     pasu with the dues of the Appellant.\n<\/p>\n
     13.       In the result, therefore, both the<\/p>\n
     Appeals succeed and are allowed. The order of<\/p>\n
     the   learned     single        Judge       in         Company<\/p>\n
     Application     No.540   of      2002       and        Company<\/p>\n
     Application No.101 of 2002 is set aside. No<\/p>\n
     order as to costs.\n<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:43:50 :::<\/span>
\n                                         26<\/span><\/p>\n
     14.        At the request of the learned Counsel<\/p>\n
     appearing    for   the   State   Government,              it     is<\/p>\n
     however,    directed     that    the    parties            shall<\/p>\n
     maintain status quo for a period of six weeks<\/p>\n
     from today.<\/p>\n
\n\n\n\n\n                                       \n                                     (D.K.DESHMUKH, J.)\n\n\n\n\n                              \n                    ig               (V.R.KINGAONKAR,J.)\n                  \n     upk\/-\n      \n   \n\n\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 15:43:50 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sicom Limited vs State Of Maharashtra on 18 March, 2010 Bench: D.K. Deshmukh, V.R. Kingaonkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.658 OF 2004 IN COMPANY APPLICATION NO.540 OF 2002 IN COMPANY PETITION NO.476 OF 1993 … SICOM Limited …Appellants v\/s.ig 1.State of Maharashtra […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-70109","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSicom Limited vs State Of Maharashtra on 18 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sicom-limited-vs-state-of-maharashtra-on-18-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sicom Limited vs State Of Maharashtra on 18 March, 2010 - 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