HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 689/04 (M/S) Kulveer Singh Vs A.D.J. F.T.C. First Haridwar and others. Approved for reporting ___________________ Not Approved for Reporting Date of decision 6.08.2004. Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 689 (MS) of 2004 Kulveer Singh S/o Late Sh. Bharat Singh R/o Qasva Jhabreda, Pargana Manglore, Tehsil Roorkee, Dist. Haridwar. …… Petitioner Vs Additional District Judge F.T.C first Haridwar and others. …..Respondents Counsel for the petitioner Sh. Alok Singh And Sh. Sanjay Kaushik Standing counsel for the respondents Dated: 6-8-2004 Hon’ble Rajesh Tandon J. Heard Sh. Alok Singh learned counsel for the petitioner assisted by Sh. Sanjay Kaushik and Standing Counsel for the respondents. By the present writ petition the petitioner has challenged the order dt. 3-12-1991 passed by the respondent No.2 and order dt. 22-1-2004 passed by the respondent No. 1 by which the injunction was refused by the Trial Court and the appeal has also been dismissed. Brief facts giving rise to the present writ petition are that the suit for permanent injunction was filed against the respondent stating therein that the property given in the schedule of the plaint be neither attached nor auctioned for the purposes of recovery of the Sales Tax Department and the petitioner was a bona-fide purchaser who purchased it on 23-8- 1998. Originally the plaintiff has claimed the relief of the permanent injunction praying not to make any recovery against the petitioner by way of auctioned proceedings in respect of scheduled 1 and 2, the same is quoted below:- rQlhy lEifRr en ¼v½ ¼1½ ,d fdrk vgkrk tqeyk rkehjkr o rl:Qhr ftlesa chl fdrk nqdkaukr o is”khu lge vkfn “kkfey gS vkSj tks U;wekfdZV ds uke ls dLck >cjsMk ls izfl) gks pqdk gSA ftlds mRrj esa lMd “kkjsvke vyek:Q >cjsMk xq:dqy ukjlu jksM nf{k.k esa leifRr yfyr dqekj ekgs”ojh vkfn if”pe esa lEifRr Jh iVweu tSu ftld ,d Hkkx esa LVsV vkQ bfUM;k dh >cjsMk “kk[kk bl le; fLFkr gS iwjc esa lEifRr Jhjkedqekj dqy lEifRr okds dLck >cjsMk ijxuk eaxykSj rglhy :Mdh gfj{kjkA ¼ 2½ ,d fdrk edku e; tqeyk rkehjkr o rl[kZQkr gj fdLe ds dLck >cjsMk A ekSgYyk iqfyl pkSdhA ftlds mRrj esa tSuefUnj o edku Jh lR;iky ukbZ nf{k.k esa edku Jh oU”khyky if[peeaxyk Fkkus okyh iwjc esa edku Jh jks”kuyky A dqy lEifRr mijksDr xzke >cjsMk i0 eaxykSj rglhy :Mdh ftyk gfj}kjkA The suit was contested by the State of U.P. through Collector Haridwar. In the written statement it was mentioned that the sale deed was null and void. Initially the injunction was in favour of the petitioner but later on, the same was vacated on the ground that by virtue of order 39 Rule (a) of the Code of Civil Procedure the injunction cannot be granted. Proviso to Section 34 of the U.P. Trade Tax Act safeguards the interest of transferee in good faith. Section 34 provides as under:- “Transfer to defraud revenue void- (1) Where, during the pendency of any proceeding under this Act, any person liable to pay any tax or other dues creates a charge on or transfers, any immovable property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such charge or transfer shall be void as against any claim in respect of any tax or other dues payable by such person as a result of the completion of the said proceedings. Provided that nothing in this section shall impair the rights of a transfer in good faith and consideration. (2) Nothing in sub-section (1) shall apply to a charge or transfer in favour of a banking company as defined in the Banking Regulation Act, (Act X of 1949) , or any other financial institution specified by the State government by notification in this behalf.” Proviso to Section 34 protects the right of the transferee in respect of transfer made in good faith and for consideration. Order 39 Rule 2 (f) provides as under:- To restrain, any auction intended to be made or, the effect of any auction made, by the Government [unless adequate security is furnished]. The aforesaid provision also sufficiently safeguards the interest of the respondent No.3 after adequate security is furnished by the petitioner. There is difference between clause (g) and (f) of Order 39 Rule 2 of the Code Of Civil Procedure, which provides as under:- To restrain, any auction intended to be made or, the effect of any auction made, by the Government [unless adequate security is furnished]. To stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished. Counsel for the petitioner has undertaken to give security in respect of the property scheduled (1) and (2) mentioned in the plaint Annexure-1 to the writ petition. It is settled law that the Civil court has jurisdiction to decide this dispute as if the property purchased by the petitioner is sold out, the petitioner will suffer irreparable loss. In view of the aforesaid facts safeguarding the interest of the, respondent No. 3, Civil Judge is directed to take adequate security in terms of the property scheduled (1) and (2) as mentioned in the plaint and may pass appropriate order. Subject to the aforesaid observation, the writ petition is disposed of in terms of the injuction prayed by the petitioner. The learned Civil Judge will pass appropriate orders by safeguarding the interest of the state by taking adequate security in terms of the property mentioned under schedule (1) and (2). The suit shall be disposed of within a period of 4 months from the filing of the certified of the order. Subject to the aforesaid observation, the writ petition is disposed of. Dated: 6-8-2004 (RAJESH TANDON J.) M.K.