1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5494 OF 2006 The Maharashtra State Co-operative Bank Ltd., Mumbai Having its registered office at 9, Maharashtra Chamber, Commerce Lane, Mumbai – 23. Through its Chief Offier Shri Baburao s/o Bapurao Kadam age 50 years, occ. service as Chief Officer M.S.C. Bank Ltd., Pay Office, Nanded P.B. No. 15, Plot no. 180 Vasant Nagar, Bus Stop, Nanded. .. PETITIONER VERSUS 1 The State of Maharashtra Through its Secretary Department of Food and Civil Supplies / Department of Co-operation, Mantralaya Mumbai. 2 The Chief Director (Sugar) Ministry of Consumer Affairs, Food and Public Distribution Department of food and Public Distribution (Directorate of Sugar) Krishi Bhavan New Delhi – 01. 3 The Assistant Commissioner 2 Central Excise and Customs Aurangabad Division – 3, Town Centre, N-5, CIDCO, Aurangabad. 4 Managing Director M/s Shetkari Sahakari Sakhar Karkhana Ltd., Killari Tq. Ausa, Dist. Latu. .. RESPONDENTS Mr. S.B. Gorde Patil, Advocate for the petitioner. Mr. V.B. Ghatge, AGP for respondent no. 1. Mr. N.S. Choudhary, Advocate for respondent nos. 2 and 3. Mr. Alok Sharma, Standing Council for Union of India. ===== CORAM : NARESH H. PATIL & K. K. TATED, JJ. DATE : 6 th AUGUST, 2010. ORAL JUDGMENT : ( PER : NARESH H. PATIL, J.) 1 Rule. Rule made returnable forthwith. With consent of the learned counsel for the parties, the matter is taken up for final hearing at the stage of admission. 2 The petitioner contends that he advanced loan to the respondent no. 4 Sugar Factory. The petitioner challenges the order of attachment of sugar bags passed by the respondent no. 3 Assistant 3 Commissioner, Central Excise and Customs Department, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “Securitisastion Act”). The petitioner has priority to recover dues as secured creditor. He is entitled to enforce the security under Securitisation Act. 3 Mr. Gorde Patil, learned counsel appearing for petitioner placed reliance on the judgment of this Court in Tata Metaliks Limited and another vs. Union of India and others reported in 2008(4) Bombay C.R. 853. 4 Mr. Gorde Patil, learned counsel also placed reliance on the order passed by the Division Bench of High Court Bombay, Bench at Nagpur (Coram : S.A. BOBDE AND P.D. KODE, JJ ), dated 25 th March, 2010 in Writ Petition no. 920 of 2009. 5 We have heard the submissions advanced by learned counsel 4 Mr. N.S. Choudhary appearing for respondent nos. 2 and 3 and learned counsel appearing for rest of the respondents. 6 In the light of the provisions of Securitisation Act and the Judgment cited supra, we find that in view of the law laid down, the respondent no. 3 – Central Excise and Customs Department, would not have any power to order attachment of the assets overriding rights of secured creditors, as in this case it is the Maharashtra State Co- operative Bank Ltd. Mumbai, the petitioner herein. 7 Learned counsel Mr. Gorde Patil appearing for the petitioner submits that the sugar bags lying under attachment are getting spoiled. It would be appropriate that at least at this stage, the bags are allowed to be sold in accordance with law so that appropriate sale price would be fetched against dues which are to be recovered by the petitioner from respondent no. 4 – Sugar factory. 8 We have considered the submissions advanced by learned 5 counsel appearing for respective parties. Perused the judgment cited supra. Learned counsel has referred to the order passed by us in Writ Petition no. 5270/06 wherein identical issue was considered by this court. We have perused the said order. In the light of the facts of the case and the judgment cited above, we are of the view that the petition needs to be allowed. 9 Attachment of sugar bags under panchanama dt. 4-4-2003 and 27-4-2004 is set aside. Impugned order dt. 26-5-2006 is quashed and set aside. Respondents are directed to handover possession of sugar bags under attachment to the petitioner / bank. Rule is made absolute. 10 In view of disposal of the petition, pending civil application, if any, does not survive and stands disposed of. ( K. K. TATED, J. ) ( NARESH H. PATIL, J. ) dyb/office/wp5494.06.odt