Point of Law: Section 48 of the VAT Act would come into play only when the liability is finally assessed and the amount becomes due and payable. It is only thereafter if there is any charge, the same would operate. The authority under the VAT Act passed the assessment order later in point of time

JUDGMENT :

J.B. Pardiwala, J.

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a nationalized bank, has prayed for the following reliefs:

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the public notice issued by the respondent no. 3 at Annexure-P published in Gujarat Samachar newspaper dated 20.08.2018, for the reasons stated in the Memo of Petition and in the interest of justice;

(B) Pending admission, hearing and final disposal of the above Special Civil Application, Your Lordships may be pleased to restrain the respondent nos. 1 to 3 from taking any further action, pursuant to the public advertisement given by them in Gujarat Samachar newspaper dated 20.8.2018 (Annexure-P), in view of the provisions of Section 26-E of the SARFAESI Act, 2002 coupled with the fact that the petitioner is in possession of the property in question from 02.08.2017 and making efforts to dispose of the property in question through public auction, for the reasons stated in the Memo of Petition and in the interest of justice;

(C) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."

2. The facts giving rise to this writ-application may be summarised as under:

(1) On 12th June 2012, the writ-applicant Bank sanctioned loan to the tune of Rs. 1,40,00,000=00 in favour of the respondent no. 4, a partnership firm. By way of security, the respondent no. 4 created a mortgage in favour of the Bank of non-agricultural land bearing Block No. 806/paiki/5 admeasuring 1443 sq. meters along with the construction admeasuring about 518 sq.meters standing thereon in the name of Kothari Industrial Estate, Rakanpur-Santej Road, Santej, Taluka Kalol, District Gandhinagar. The original title-deeds of the properties were handed over by the respondent no. 4 in favour of the Bank. The registered mortgage deed referred to above came to be executed on 20th August 2012 and the same was registered with the office of the Sub-Registrar, Kalol.

(2) On 19th June 2013, a supplementary mortgage-deed came to be executed by the partners of the borrowing firms, namely Shri Navinbhai Dahyabhai Patel and Smt. Pallaviben Navinbhai Patel, in their personal capacity by mortgaging their bungalow bearing No. 2/A, Plot No. B/1 admeasuring 290 sq. yards with undivided share in the land known as 'Maruti Hills' situated on Final Plot No. 6/2/p and 7/2/p, Sub-Plot No. 17/2/B of Survey No. 965/6 of Mouje Vejalpur and also residential immovable property bearing City Survey No. 906/A admeasuring 256.85 sq. meters situated at Visnagar, Taluka Visnagar, District Mehsana.

(3) On 31st January 2014, a third mortgage-deed was executed by the two partners referred to above in their personal capacity registered with the Sub-Registrar, Kalol, on the very same day and date.

(4) It appears that over and above the credit facility aggregating to Rs. 140.00 lakh which was sanctioned first in point of time, the said facility later came to be enhanced to Rs. 320.66 lakh and from Rs. 320.66 lakh, the same came to be enhanced to Rs. 485.15 lakh. It appears that the respondent no. 4 defaulted in the repayment of the loan amount.

(5) On 3rd May 2016, a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARFAESI Act') came to be issued upon all the partners of the firm. The partners were restrained from selling or transferring the secured assets without the prior permission of the Bank.

(6) On 2nd September 2016, a notice was issued for the purpose of taking over of the possession of the secured assets. Ultimately, after complying with all the legal procedures under the provisions of the SARFAESI Act, the physic