R. M. LODHA, J. : - On 5th December, 2005, the Court observed considering the controversy involved, and that may arise in other matters as w writ petition needs to be heard and disposed of at the admission stage, accordingly, heard the counsel for the parties for final disposal of the petition.

2. The Thane J anata Sahakari Bank Limited is a scheduled co - opera bank incorporated under the Maharashtra Co - operative Societies Act, 1960 an in the banking business. For the sake of convenience, we shall refer the petition as the Bank hereinafter. One M/s Charishma Cosmetics Pvt. Ltd. (for short company) had credit facilities with the Bank. According to the Bank, as on 3 June, 2004, the company was indebted to the Bank in the sum of 2,32,00,000/ - against the cash credit facility and Rs. 10,00,000/ - towards working capital term loan. For availing the credit facilities, the company mortgaged factory, land and building by way of equitable mortgage in favour the bank on 18 - 2 - 1997. The account of the company was classified as n performing assets and the bank decided to recover the due amount against company under the Securitisation and Reconstruction of Financial Assets Enforcement of Security Interest Act, 2002 (hereinafter to be referred to Securitisation Act). Before the Bank decided to initiate recovery proceed against the company under the Securitisation Act, 2002, it is pertinent to no that the sales tax dues from the company amounting to Rs. 3,27,24,096/ - for assessment period from 1995 - 96 and 1999 - 2000 were outstanding under Bombay Sales Tax Act and Central Sales Tax Act. The company had also paid with returns an amount of Rs. 35,58,672/ - that they collected as sales tax, other words, an amount of Rs. 3,62,82,768/ - was already outstanding against company towards the sales tax dues. For recovery of the said sales tax dues, the proceedings under the Maharashtra Land Revenue Code were initiated. The notice in form No. 39 dated 7 - 11 - 2003 was also served upon the bank asking them to discharge the sales tax liability of the company. The sales tax authorities also executed warrant of attachment; took possession of the properties of the company and put seals thereon.

3. The case of the Bank is that on 25 - 11 - 2004 when its officer conducted a visit to the company, it was found that the sales tax authorities had affixed seals on the properties of the company. On 2 - 12 - 2004, the bank sent a letter to the Assistant Commissioner of Sales Tax (respondent No.2) pointing out that the Bank has first charge in respect of the companys movable and immovable properties. The information about the sales tax proceedings was also sought. The respondent No. 2 was also asked not to take further action in respect of the movable and immovable properties of the company without prior notice to the bank.

4. The Bank thereafter issued notice on 20 - 12 - 2004 under section 13(2) of Securitisation Act in respect of the hypothecated and mortgaged properties. It became necessary, according to the Bank, since the company failed to clear the dues. The actual possession of the movable and immovable properties was taken by the Bank on 15 - 2 - 2005. The valuation of the said properties was carried out and the auction date of the said properties was fixed on 13 - 5 - 2005. In the auction, the properties of the company were sold for Rs. 66,31,001/ - and the possession was handed over to the auction purchaser. The Bank appropriated the sale proceeds towards the due amount from the company.

5. On 11th July, 2005, the Assistant Commissioner of Sales Tax sent a letter to the Bank informing them that the sales tax dues are the first charge against the properties of the company. The Bank was informed about the recovery action taken against the properties of the company.

6. The Bank responded to the letter dated 11th July, 2005 by sending the reply on 14th July, 2005. The Bank asserte