JUDGMENT (Prayer: This Writ petition has been filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records under the proceedings of the attachment order dated 29.07.2011 of the 2nd respondent under Section 167 of the Tamil Nadu Co-operative Society Act, 1988 and quash the same and direct the 6th respondent to raise the attachment registered as Document No.10 of 2011 in the office of Sub-Registrar of Sulur, Coimbatore with regard to the property, morefully described in Schedule I of the said order dated 29.07.2011.) The petitioner bank has filed this writ petition challenging the order passed by the 2nd respondent attaching property of the 5th respondent under Section 167 of Tamil Nadu Co-operative Societies Act, and also for consequential direction to 6th respondent to raise the attachment registered as document No.10 of 2011 on the file of the Sub Registrar of Sulur, Coimbatore. 2. According to the petitioner that 4th and 5th respondents who are husband and wife approached the petitioner bank for housing loan for construction of house after demolition of old structure in the site belongs to 5th respondent situated in S.F.Nos.171/1, 171/2 and 178/3 in Karumathampatti Village, Palladam Taluk, Tiruppur District morefully described in the annexure to the impugned order itself. A sum of Rs.19.00 Lakhs was sanctioned to them as a housing loan. As a security purpose for proper payment of the loan amount, 5th respondent created equitable mortgage by deposit of title deeds over the above said lands. The 5th respondent executed a confirmation deed by deposit of title deeds on 29.03.2010 in favour of petitioner bank and created equitable mortgage. The Memorandum of Deposit of title deed was registered on 30.03.2010 as Document No.2844 of 2010 on the file of the Sub Registrar, Sulur, Coimbatore. The 4th and 5th respondents defaulted in repayment of the loan amount and as a consequence, their loan account was classified as Non-Performing Asset on 28.12.2012. When the petitioner bank initiated recovery proceedings against the immovable property mortgaged by 5th respondent, it came to their knowledge that subsequent to registration of the Memorandum of Deposit of title deeds, the 2nd respondent passed impugned order of attachment dated 29.07.2011 attaching the very same property for the amount due to the 3rd respondent society from the 4th respondent. When the petitioner bank initiated recovery proceedings against the immovable property mortgaged by 5th respondent, it came to their knowledge that subsequent to registration of the Memorandum of Deposit of title deeds, the 2nd respondent passed impugned order of attachment dated 29.07.2011 attaching the very same property for the amount due to the 3rd respondent society from the 4th respondent. The petitioner claimed that it issued notice under Section 13 (2) of SARFAESI Act, 2002 dated 09.05.2013 calling upon the 4th and 5th respondents to repay a sum of Rs.18,73,317.63/- and there was no response from them. Thereafter, a Possession Notice was issued in respect of the mortgaged property on 18.07.2013. The petitioner claimed that when they proceeded against mortgaged property by bringing it for auction sale, they were not able to get bidders because of the order of attachment reflected in encumbrance certificate issued to the property. The order of the attachment passed by the 2nd respondent was challenged on the ground that for the amount due from 4th respondent, the 2nd respondent is not legally entitled to attach the properties of the 5th respondent. 3. The 3rd respondent filed a counter and opposed the writ petition. In its counter it was submitted by the 3rd respondent that the 4th respondent by his actions and omissions caused loss to the 3rd respondent society to the tune of Rs.58,97,453/-. In order to recover the said amount, the property in question was attached under Section 167 of Tamil Nadu Co-operative Societies Act, 1983, on 29.07.2011. It was claimed in the counter of the 3rd respondent that 5th respondent is the wife of the 4th respondent and the property in question though stands in the name of the 5th respondent, it was purchased by the 4th respondent, nominally in the name of the 5th respondent and she was only a name lender, having no separate source of income. Therefore, 3rd respondent contended in his counter, the property though stands in the name of the 5th respondent, it should be treated as a property of the 4th respondent. Hence the 2nd respondent is justified in attaching the property for the amount due from 4th respondent. Therefore, 3rd respondent contended in his counter, the property though stands in the name of the 5th respondent, it should be treated as a property of the 4th respondent. Hence the 2nd respondent is justified in attaching the property for the amount due from 4th respondent. It was also contended that 4th respondent himself admitted in the surcharge proceedings initiated against him under Section 87 of Tamil Nadu Co-operative Societies Act, that the property stands in the name of the 5th respondent actually belongs to him. 4. Heard the arguments of the learned counsel for the petitioner and contesting respondents. 5. The learned counsel for the petitioner submitted that the 5th respondent created equitable mortgage in favour of petitioner on 29.03.2010. The deed of confirmation of deposit of title deeds executed by 5th respondent in favour of petitioner bank was registered on 30.03.2010. The attachment order was passed by 2nd respondent much latter on 29.07.2011. The learned counsel submitted that property was purchased by 5th respondent in her name by registered document dated 12.07.1999. The learned counsel vehemently contended for the amount due from 4th respondent, 2nd respondent is not legally justified in attaching the property of the 5th respondent. Due to the attachment order passed by the 2nd respondent which is reflected in the encumbrance certificate the petitioner bank is unable to bring the property for auction sale as there is no likelihood of getting attractive bidders, in view of the encumbrance created by the impugned attachment order. The learned counsel further submitted by taking me to the Section 26 E and Section 35 of SARFAESI Act that provisions of this Act will have overriding effect on the other laws and the petitioner being secured creditor is entitled to priority over other debts and all revenues, taxes, cess payable to Central Government or State Government or Local Authorities. The learned counsel also relied on the following decisions in support of his contentions that the petitioner is entitled to have priority over the 3rd respondent. 1. CDJ 2010 MHC 5895(Central Bank of India, Karaikudi Branch, Rep by its Regional Manager, R.Ravikumar versus The Assistant Commercial Tax Officer, Karaikudi & Another) 2. 2006 SCC Online MAD 1182 (UTI Bank Ltd. versus The Deputy Commissioner of Central Excise, Chennai and Anr.) 3. CDJ 2022 SC 259 : AIR2022SC1475, (Punjab National Bank versus Union of India & Others) 6. CDJ 2010 MHC 5895(Central Bank of India, Karaikudi Branch, Rep by its Regional Manager, R.Ravikumar versus The Assistant Commercial Tax Officer, Karaikudi & Another) 2. 2006 SCC Online MAD 1182 (UTI Bank Ltd. versus The Deputy Commissioner of Central Excise, Chennai and Anr.) 3. CDJ 2022 SC 259 : AIR2022SC1475, (Punjab National Bank versus Union of India & Others) 6. The learned counsel also submitted that the property in question was purchased by 5th respondent on 12.07.1999, well prior to registration of the 3rd respondent society, which had taken place only on 13.08.1999 and hence there is no possibility for the 4th respondent to purchase the said property in the name of 5th respondent by diverting misappropriated amount. 7. The learned counsel for the 3rd respondent vehemently contented that 4th respondent misappropriated nearly 58.00 lakhs which is the public money and raising of attachment order passed by 2nd respondent would result in adverse consequences to the 3rd respondent society which works for the upliftment of poor power loom weavers. The learned counsel further submitted that the 5th respondent who according to the writ petitioner is the owner of the property has not questioned the attachment order and hence writ petitioner is not entitled to question it. The learned counsel for the 3rd respondent also submitted that in case this Court come to the conclusion that the writ petitioner in its capacity as a secured creditor has got priority right over the rights of the 3rd respondent society, by exercising equitable jurisdiction, this Court can appoint an Advocate Commissioner to sell the property in open auction and out of sale proceeds the amount due to the writ petitioner may be satisfied first and balance amount, if any, should be paid to the 3rd respondent society for the purpose of satisfying the amount due from 4th respondent. The 2nd respondent passed impugned order attaching the property of the 5th respondent for the sum admittedly due from the 4th respondent. The impugned order has been passed under Section 167 of Tamil Nadu Co-operative Societies Act. The Section 167 of Tamil Nadu Cooperative Societies Act reads as follows: “167. The 2nd respondent passed impugned order attaching the property of the 5th respondent for the sum admittedly due from the 4th respondent. The impugned order has been passed under Section 167 of Tamil Nadu Co-operative Societies Act. The Section 167 of Tamil Nadu Cooperative Societies Act reads as follows: “167. Furnishing of Security and attachment of property.- (1) Where the Registrar is satisfied on the application of a registered society in respect of a reference made to him under sub-Section (1) of Section 90 or on the application of a liquidator appointed under Section 138 in respect of the proceedings of such liquidator for determining the contribution to be made by a person to the assets of the society under clause (b) of sub-section (2) of Section 139 or on the application of the board or liquidator or any creditor to the society or otherwise in respect of any inquiry ordered into the conduct of any person under Section 87 that any party to the reference or the person, as the case may be, is about to dispose of or remove from the local limits of the jurisdiction of the Registrar, the whole or any part of his property with intent to defeat or delay the execution of any decision that may be passed on the reference or of any order that may be passed against him by the liquidator or the Registrar, as the case may be, the Registrar may, by order, direct the party or the person to furnish security in such sum and within such time as may be specified in such order and to produce and place at the disposal of the Registrar when required, the said property or such part thereof as may be sufficient for the execution of any decision or order aforesaid. (2) The Registrar may also in the order made under subsection (1), or by a separate order, direct the conditional attachment of the said property, or such part thereof and such attachment shall have the same effect as if it had been made by a competent Civil Court: Provided that no order for conditional attachment shall be made under this sub-section unless the Registrar, for the reasons to be recorded in writing, is satisfied that the whole or any part of the property will be disposed of or removed with intent to defeat or delay the execution of any decision or order of the liquidator or the Registrar, as the case may be.“ 8. The perusal of the above provision make it clear that one of the essential condition for passing order of attachment is the satisfaction of the authority concerned namely the Registrar that the person concerned is about to dispose of or remove from the local limits of the jurisdiction of the Registrar, the whole or any part of his property with intent to defeat or delay execution of any decision that may be passed against him. As far as present case is concerned, the main contention of the 3rd respondent society is that 4th respondent had misappropriated the funds of the society and caused loss to the society to the tune of Rs 58.00 lakhs. Therefore, the essential requirement for passing order of attachment is that 4th respondent is about to dispose of or remove his property from the jurisdiction of the Registrar. In other words, the property to be attached must be the property belongs to the person from whom the amount is due to the society. The same can be gathered from the employment of expression “his property“ under Section 167 of Tamil Nadu Cooperative Societies Act. In the case on hand, the title document of the property stands in the name of the 5th respondent. She purchased it on 12.07.1999 in her name. Therefore, in the eye of the law, 5th respondent is the owner of the property and 4th respondent is not the owner of the property attached by 2nd respondent. It was contended by 3rd respondent that 4th respondent utilised funds at his disposal and purchased the property in the name of his wife namely 5th respondent and hence the property should be treated as the property of the 4th respondent. It was contended by 3rd respondent that 4th respondent utilised funds at his disposal and purchased the property in the name of his wife namely 5th respondent and hence the property should be treated as the property of the 4th respondent. This question cannot be canvassed before the statutory authorities exercising power under Cooperative Societies Act. The contentions raised by the 3rd respondent society that the real owner of the property is 4th respondent should be raised only before the Civil Court and not before the authorities or before the writ Court. Further, after coming into force of Binami Prohibition Act, how far the 3rd respondent would succeed in his contention even before the Civil Court is highly doubtful. I am refraining from expressing any opinion on the tenability of 3rd respondent-s contention vis-a-vis Binami prohibition Act. It is up to the 3rd respondent to move appropriate forum and explore the possibility of getting appropriate remedy. As the things stands today, property stands in the name of 5th respondent, therefore, the second respondent is not justified in attaching the said property by impugned order of attachment, for the amount due from the 4th respondent. Absolutely there is nothing available in the impugned order to show how the 2nd respondent formed an opinion that property under attachment belongs to 4th respondent. Therefore, in the absence of any material for his satisfaction that property belongs to 4th respondent, the attachment order is unsustainable in law. When the property admittedly not belongs to the 4th respondent, the impugned order passed by 2nd respondent attaching the property of another person for the amount due from the 4th respondent is legally not tenable and consequentially liable to be quashed. 9. The learned counsel for the petitioner also submitted that as a secured creditor the petitioner bank has got priority right over the right available to the 3rd respondent. It would be useful to refer to the decision reported in CDJ 2010 MHC 5895, (Central Bank of India, Karaikudi Branch, Rep by its Regional Manager, R.Ravikumar versus The Assistant Commercial Tax Officer, Karaikudi & Another) wherein this Court while considering the right of the secured creditor under SARFAESI Act vis-a-vis right of the Central Excise Department-s claim regarding the arrears of tax, had observed as follows: “26. In the light of the above discussions, we conclude, “(i) Generally, the dues to Government, i.e., tax, duties, etc., (Crown-s debts) get priority over ordinary debts. (ii) Only when there is a specific provision in the statue claiming “first charge“ over the property, the Crown-s debt is entitled to have priority over the claim of others. (iii) Since there is no specific provision claiming “first charge“ in the Central Excise Act and the Customs Act, the claim of the Central Excise Department cannot have precedence over the claim of secured creditor, viz., the petitioner Bank. (iv) In the absence of such provision in the Central Excise Act as well as in Customs Act, we hold that the claim of secured creditor will prevail over Crown-s debt.“ Therefore, it is very clear right of the secured creditor under SARFAESI Act will have precedence over Crown-s debt. The similar view was taken by full bench of this Court in a decision reported in 2006 SCC online 1182 (UTI Bank Ltd. versus The Deputy Commissioner of Central Excise, Chennai and Anr.) wherein the Hon’ble Mr.Justice P.Sathasivam, (as he then was) speaking for the full bench observed as follows: “25. In the case on hand, the petitioner Bank which took possession of the property under Section 13 of the SARFAESI Act, being a special enactment, undoubtedly is a secured creditor. We have already referred to the provisions of the Central Excise Act and the Customs Act. They envisage procedures to be followed and how the amounts due to the Departments are to be recovered. There is no specific provision either in the Central Excise Act or the Customs Act, claiming “first charge“ as provided in other enactments, which we have pointed out in earlier paragraphs. (Emphasis supplied) 26. In the light of the above discussion, we conclude, “(i) Generally, the dues to Government, i.e., tax, duties, etc. (Crown-s debts) get priority over ordinary debts. (ii) Only when there is a specific provision in the statute claiming “first charge“ over the property, the Crown-s debt is entitled to have priority over the claim of others. (iii) Since there is no specific provision claiming “first charge“ in the Central Excise Act and the Customs Act, the claim of the Central Excise Department cannot have precedence over the claim of secured creditor, viz., the petitioner Bank. (iii) Since there is no specific provision claiming “first charge“ in the Central Excise Act and the Customs Act, the claim of the Central Excise Department cannot have precedence over the claim of secured creditor, viz., the petitioner Bank. (iv) In the absence of such specific provision in the Central Excise Act as well as in Customs Act, we hold that the claim of secured creditor will prevail over Crown-s debts.“ In view of our above conclusion, the petitioner UTI Bank, being a secured creditor is entitled to have preference over the claim of the Deputy Commissioner of Central Excise, first respondent herein.“ The above said decision of the full bench of this Court was affirmed by the Hon’ble Apex Court in a case reported in CDJ 2022 SC 259 : AIR2022SC1475, (Punjab National Bank versus Union of India & Others), the relevant observation of the Hon’ble Apex Court is as follows: “43. In view of the above, we are of the firm opinion that the arguments of the learned counsel for the Appellant, on the second issue, hold merit. Evidently, prior to insertion of Section 11E in the Central Excise Act, 1944 w.e.f. 08.04.2011, there was no provision in the Act 1944 inter alia, providing for First Charge on the property of the Assessee or any person under the Act of 1944. Therefore in the event like in the present case, where the land, building, plant machinery, etc. have been mortgaged/hypothecated to a secured creditor having regard to the provisions contained in Section 2(Zc) to (zf) of SARFAESI Act, 2002, read with provisions a First Charge on the Secured Assets. Moreover, Section 35 of the SARFAESI Act, 2002 inter alia, provides that the provisions of the SARFAESI Act, shall have overriding effect on the other laws. It is further pertinent to note that even the provisions contained in Section 11E of the Central Excise Act, 1944 are subject to the provisions contained in the SARFAESI Act, 2002. 44. Thus, as has been authoritatively established by the aforementioned cases in general, and union of India vs SICOM Ltd. (supra) in particular, the provisions contained in the SARFAESI Act, 2022, even after insertion of Section 11E in the Central Excise Act, 1944 w.e.f. 08.04.2011, will have an overriding effect on the provisions of the Act of 1944.“ 10. 44. Thus, as has been authoritatively established by the aforementioned cases in general, and union of India vs SICOM Ltd. (supra) in particular, the provisions contained in the SARFAESI Act, 2022, even after insertion of Section 11E in the Central Excise Act, 1944 w.e.f. 08.04.2011, will have an overriding effect on the provisions of the Act of 1944.“ 10. The close scanning of the above decision make it clear that the rights of the secured creditor under SARFAESI Act have got priority over Crown-s debts. In the absence of any provision in the Tamil Nadu Co-operative Societies Act, giving first charge to the amount due to the Cooperative Societies, I hold the writ petitioner, being a secured creditor, is entitled to priority over the amount due to the 3rd respondent society. Further as held in CDJ 2022 SC 259 : AIR2022SC1475, (Punjab National Bank versus Union of India & Others), cited supra, in view of Section 35 of SARFAESI Act giving overriding effect on all other laws even an incorporation of provision in Co-operative Societies Act giving first charge to the amount due to the society will not be of any use. 11. In view of the discussions made above, I hold that the writ petitioner as a secured creditor is entitled to have priority over the claim of the 3rd respondent society. As far as this case is concerned, when the property under attachment is not shown to be the property of the 4th respondent, the 2nd respondent is not justified in passing an order of attachment against the property in question which admittedly stands in the name of the 5th respondent. Therefore, the impugned order of the attachment passed by the 2nd respondent is quashed. Consequently, the 6th respondent is directed to incorporate necessary changes in its file, recording the quashment of the attachment order. The writ petition is allowed as indicated as above. In the facts and circumstances of the case, there is no order as to costs.