1 W.P.No.1357.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1357 OF 2009 The Maharashtra State Co-Operative Bank Ltd., Mumbai Having its registered Office at 9 Maharashtra Chamber, Commerce Lane,Mumbai-23 Through its Deputy Chief Officer Shri Sunil Ramdas Ahirrao Age : 48 years Occup. Service Deputy Chief Officer Plot No.3 Sector E, Bombay-Agra High Way, Nashik, Tq.& District Nashik. ...PETITIONER. VERSUS 1. The Union of India. 2. The Superintendent of Central Excise and Customs,Plot No.5, Chaitnya Colony, Dondiacha, Tq. Sindkheda,District Dhule. 3. The Assistant Commissioner Central Excise and Customs Aurangabad Division-3 Town Centre, N-5,CIDCO, Aurangabad. 4. Managing Director, Pushpadantteshwar Sahakari Sakhar Karkhana Ltd., Samserpur,Tq. Nandurbar. District Nandurbar. ...RESPONDENTS. 2 W.P.No.1357.09 ... Shri.S.B.Gorde Patil, Advocate for Petitioner. Shri. N.S.Choudhari,Advocate for Respondent Nos. 1 to 3. Shri Shrikant S.Patil,Advocate for respondent No. 4. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 26TH JULY, 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.2- Superintendent of 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 “Securitisation 3 W.P.No.1357.09 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 25th March, 2010 in Writ Petition No. 920 of 2009. 5. We have heard the submissions advanced by Mr. N.S.Choudhari, learned counsel appearing for respondent Nos. 1 to 3 and counsel appearing for other respondents. 6. In the light of the provisions of 4 W.P.No.1357.09 Securitisation Act and the judgment cited supra, we find that in view of the law laid down, the respondent No.2-Superintendent of Central Excise and Customs Department would not have any power to order attachment of the assets overriding rights of secured creditor, as in this case it is the Maharashtra State Co-operative Bank Ltd. Mumbai, the petitioner herein. 7. Mr. Gorde Patil, learned counsel appearing for petitioner submits that the sugar bags under attachment are lying since last more than four to five years. The bags be allowed to be sold in accordance with law so that appropriate price would be fetched against huge dues which are to be recovered from the sugar factory. 8. Considering the provisions of law, judgment cited supra and submissions advanced by the learned counsel for the parties, we allow the Writ Petition in terms of amended prayer clause “C-1”, which is reproduced below : 5 W.P.No.1357.09 C-1] The action of respondent No.2 and 3 thereby attaching the sugar bags of respondent No.4 pledged with the petitioner bank and further putting the said for auction sale on 27.02.2009 may kindly be quashed and set aside and further sugar bags attached by the respondent No.2 and 3 may kindly be released and the same be handed over to the petitioner in the interest of justice. 9. The order passed by the respondent No.2, dated 23.02.2009 stands quashed and set aside. Subsequent action taken by the respondent Nos 2 and 3 attaching sugar bags is also set aside. 10. Rule is made absolute in the above terms. No order as to costs. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK