IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4009 of 2005 Mahendra Prasad son of Late Anant Ram, resident of Mohalla- Kathokar Talab, Gaya, P.S.- Kotwali, Gaya, District-Gaya. …..Petitioner. Versus 1. The State of Bihar through the Commissioner of Commercial Taxes, Bihar, New Secretariat, Patna. 2. The Commissioner, Commercial Taxes, New secretariat, Bailey Road, Patna. 3. The Deputy Commissioner, Gaya Anchal, Commercial Taxes, Gaya. 4. The District Certificate Officer, Gaya. ……..Respondents. ----------- For the petitioner : Dr. Arun Kumar-II, Advocate. For the State : Mr. Sanjay Kumar No.1, S.C. 12 with Mr. Birendra Kumar A.C. to S.C.12. ---------- 06/ 29.03.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This petition has been filed by the petitioner challenging proceeding of Certificate Case No.02 of 1998-99 pending before the District Certificate Officer, Gaya which was initiated by the Deputy Commissioner, Commercial Taxes, Gaya in respect of alleged dues of sales tax of Rs.66,823.78 against M/S Vishnu Roller Flour & Oil Mills (P) Ltd. Tekna for the period 1987-88 and Rs.31,445.37 for the period 1988-89 totally amounting to Rs.98,269.15 and also challenging warrant of arrest issued by the Certificate Officer for recovery of Rs.1,72,978.00 and for other ancillary reliefs. 3. Although statutory remedies against such steps/orders have been provided by way of appeal under Section 60 and revision under Section 62 of the Bihar & Orissa Public - 2 - Demand Recovery Act,1914 (hereinafter referred to as ‘the Act’ for the sake of brevity) but learned counsel for the petitioner insists that this case has to be heard by this court under Articles 226/227 of the Constitution of India placing reliance on a Division Bench decision of this Court in case of Kanhaiya Lal Vs. State of Bihar and others, reported in 2002 (2) PLJR 553, in paragraph 10 of which it was held that as a proposition of law, the existence of alternative remedy cannot be treated as absolute bar to entertain a writ petition so as to amount to denudation of the power of the High Court under Articles 226 and 227 of the Constitution of India which power the High court can always exercise in the facts and circumstances of the case, notwithstanding that some alternative remedy is available to the person aggrieved which he has not exhausted. It was further held that had the Company, i.e. the certificate debtor, approached this court without exhausting the revisional remedy, this court would have, perhaps, asked it to exhaust the remedy before coming to this court but as the appellant cannot be treated as a certificate debtor and he is not personally liable for the certificate dues, as already indicated, it would be harsh to compel him to file appeal or revision tantamounting to asking him to deposit huge money without which the appeal or revision cannot be entertained. It was also held that if he is not personally liable for single paise of the certificate dues asking him to deposit dues would be too onerous and arbitrary. Hence it was for this reason that the said Division - 3 - Bench proceeded to examine the case of the parties on merits rather than relegating the appellant to the internal remedy under the Act. In view of the aforesaid decision of the Division Bench of this Court, learned counsel for the petitioner insists that this case has to be considered and decided by this court under the provision of Articles 226 and 227 of the Constitution of India. 4. Learned counsel for the petitioner submits that M/s Vishnu Roller Flour & Oil Mills (P) Ltd was a registered Company under the Companies Act, 1956 and it is patent from the certificate itself that it is a company and not a partnership firm and hence it is a judicial person which can sue and can be sued in its own name. Hence, he submits that petitioner not being a partner, rather being merely an Ex-Director and share holder of the said Company, taking action against him and issuing warrant for arresting him was absolutely arbitrary and illegal. In this connection, he relies upon a decision of a Division Bench of this court in case of Damodar Prasad Nathani & anr Vs. The State of Bihar & ors., reported in 1999(1) PLJR 522 in which it was specifically held that the certificate proceeding against the Director or the co-sharer cannot proceed and the dues against the Company can be realised only from the assets of the Company which is a juristic person. Learned counsel for the petitioner further relies upon the other decision of a Division Bench of this Court in case of Kanhaiya Lal (supra) in paragraph 5 of which it was held that the law on the point is well settled that the liability of the Company cannot be enforced against - 4 - its officer, including Director and Managing Director, and the dues against the Company can be realised from the assets of the Company which is a juristic person. 5. In view of the aforesaid settled principles of law, it is quite apparent that the proceeding for realisation of dues of the Company can legally proceed only against the Company which is a juristic person and not its Ex-Director or share-holders and such dues can be realised from the assets of the Company. The impugned certificate clearly shows that it was issued only against the company, namely M/s Vishnu Roller Flour & Oil Mills (P.) Ltd. and not against the petitioner. However, at the back of the said certificate it was specifically written that there were three co- sharers of the Company, including the petitioner, out of whom the other two have already died, as stated in court by learned counsel for the petitioner. Furthermore, the property of the Company is also detailed at the back of the said certificate, i.e., Plot No.724 under Tauzi no.4100 situated at Dobhi Road, Gaya on which building of the company was constructed. 6. In the said circumstances, this writ petition is disposed of with a direction to the respondents that the dues of the respondents are recoverable from the said property only and not from the petitioner. However, it is stated by learned counsel for the petitioner that the Company is under liquidation, hence if that is so the respondents may approach the Official Liquidator for recovery of its dues as it is for the Official Liquidator to pay from the - 5 - income/ sale of the property of the company to the creditors as per the settled priorities. Sunil (S. N. Hussain, J.)