IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE JUSTICE MR. HARUN-ULRASHID MONDAY, THE 15TH JUNE 2009 / 25TH JAISHTA 1930 RSA.No. 73 of 2009() -------------------- AS.272/2003 of DISTRICT COURT, PALAKKAD OS.180/1997 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- LALITHA TRIPURA SUNDARI D/O.PAZHANI SWAMI S-50 KOVAI PUTHUR, COIMBATORE -42. BY ADV. SRI.A.R.GANGADAS SRI.JAGADEESH LAKSHMAN RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE TAHASIDAR REVENUE RECOVERY, PALAKKAD. BY GOVERNMENT PLEADER SRI.L.G. SURESH BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.73 of 2009 ---------------------------------------- Dated this the 15th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 272/2003 on the file of the District Court, Palakkad which arises from the judgment and decree in O.S No. 180/1997 on the file of the Sub -court, Palakkad. The plaintiff's case is that she is the absolute owner of the plaint schedule property. She purchased the same from one D.Aravindan as per sale deed No.5857/1995 dated 15.09.1995. The plaintiff was served with a notice from the office of the 2nd defendant demanding an amount of Rs.1,01910/- as Sales Tax arrears due from M/s Radhakrishnan and Company. In the notice it was stated that the plaint schedule property would be attached and sold for the amount demanded. The further case of the plaintiff is that she has nothing to do with the firm, that the Radhakrihnan and Aravindan are the partners of the firm, that the plaint schedule property is not the property of the partnership firm and no amount is due from the plaintiff to the Government. Therefore the suit was filed for permanent prohibitory injunction restraining the defendants from selling the plaint schedule property and for a mandatory injunction directing the defendants to lift the attachment. 2. The trial court on evidence found that the said Aravindan is personally liable for the sales tax arrears due from the firm. The trial court held that “ Section 26 A of the Kerala General Sales Tax Act stipulates R.S.A. 73 of 2009 -2- that “where during the pendency of any proceedings under this Act or after the completion thereof, any assessee creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of any of his assets in favour of any person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee under this Act” In such circumstance the trial court rightly held that the plaintiff cannot claim to be the title holder and in possession of the plaint schedule property. I am also of the view that in view of Section 26A of the said Act the transfer mentioned in this Second Appeal is void abinitio. Such a transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee under this Act. The dismissal of the suit by the trial court based on the above said provision and the confirmation by the lower appellate court are just and proper. I find no reasons to interfere with the judgments and decrees passed by the courts below. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.73 of 2009 ---------------------------- JUDGMENT 15th June, 2009