IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 11.03.2010 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.7766 of 2003 and W.P.M.P.No.9986 of 2003 C.R.Venkatapathy .. Petitioner vs. The Deputy Commercial Tax Officer Palladam Circle Palladam Coimbatore District .. Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari as stated therein. For petitioner : Mr.N.Muralikumaran For MCGAN LAW FIRM For Respondent : Mr.K.Radhakrishnan & Mr.J.Ganesan Spl. Govt. Pleader(T) O R D E R The petitioner has filed this writ petition, praying for issuance of a writ of certiorari, in calling for the records of the Distraint Order of the respondent in Na.Ka.No.2328/2002/A3 dated 7.2.2003 attaching and proposing to auction the property of the petitioner in Survey No. 60 in Kallapalayam Village, Palladam Taluk, Coimbatore District measuring to an extent of 5 acres for the alleged sales tax dues arising under the Tamil Nadu General Sales Tax and Central Sales Tax. 2.According to the learned counsel for the petitioner, the petitioner is not liable to pay any amount to the Tamil Nadu Sales Tax Department either under the Tamil Nadu General Sales Tax Act or under the Central Sales Tax Act and as such his properties could not be attached and further the assessment proceedings were not in his name and also that no demand was made against him and in the absence of any demand made against him, his property could not be attached. Incidentally, it is contended that the Respondent has no power to attach or sell the properties of the person, who is not liable to pay tax. https://hcservices.ecourts.gov.in/hcservices/ 3. It is further stand of the petitioner that the property sought to be attached by the respondent was not given as security and that apart, the property sought to be auctioned by the respondent by means of the impugned order dated 7.2.2003 was not in security as on date or on the date of commencement of the impugned proceedings and therefore, prays for allowing the writ petition to advance the cause of justice. 4. The plea of the respondent is that one Thiru C.V.Sanjeev Kumar, Proprietor of Tvl.Sri Annapoorna Farm Equipment , engaged in the manufacture of grain crushing machine at Singanallur, Coimbatore, who was an Assessee/Dealer was in arrears of tax amounting to Rs.24,10,859/- and at the time of applying for Registration by the said C.V.Sanjeev Kumar, the writ petitioner (the father of Dealer Sanjeev Kumar), had tendered his immovable properties of 5 acres of agricultural land as security in Form XIX-B as prescribed under the Tamil Nadu General Sales Tax Act 1959 and the petitioner undertook in Form XIX -B to bind himself in paying the Government of Tamil Nadu, a sum of tax, fees or other amount due wherever occur against him. 5. That apart, the amount against the said firm and the property comes within the jurisdiction of the respondent, the Commercial Tax Officer, Singanallur sent the ODR requisition in Form 30 to the respondent and the respondent under the Revenue Recovery Act issued a notice in Form 1 and Form 4 to the petitioner on 7.2.2003 and in the present case on hand, the writ petitioner, (father of Dealer C.V.Sanjeev Kumar), at the time of the Registration of the property concerned came forward by producing a xerox copy of the title of his property in Survey No.60, an agricultural land measuring an extent of 5 acres in Kallapalayam Village and undertook to pay the Government any tax or fee or any other amount and he executed the security bond in Form XIX-B, a lien was created against the particular property which was tendered as security. 6. It is noted that as per the Sub Section 2 of Section 24 of the Tamil Nadu General Sales Tax Act 1959 'any tax assessed or has become payable or any other amount due under the Act from the dealer or person shall have priority over any other claim over the said property of the said dealer or person and the same could be recovered as land revenue and by virtue of the specific provisions contained in the Act, the Assessing Officer is empowered to collect the arrears by attaching the property given as security by invoking the provisions of the Revenue Recovery Act. 7. Countering the stand taken by the respondent, the learned counsel for the petitioner contends that no original document has been produced before this Court and it is mandatory that original files to be produced before this Court and not the xerox copies of the original and that the petitioner has not signed any papers giving security of his property to his son's https://hcservices.ecourts.gov.in/hcservices/ business. More over, in Form D submitted by his son before the Commercial Tax Department for registration of his concern as a dealer, he has mentioned the property given as security is a self acquired property and the property which is to be sought to be attached and sold originally belonged to to his mother having purchased the same in the year 1950. The said property was bequeathed to him by a registered Will dated 6.9.1991 and both the Form D and also the Form XIX-B documents of the year 1970 said to have been given to the Commercial Tax Department mentioned the same and there was no document available with the Commercial Tax Department to relate the petitioner in any manner and therefore there was no valid mortgage created by the petitioner in accordance with law and therefore prays for allowing the writ petition. 8. The learned counsel for the petitioner cites the decision of the Hon'ble Supreme Court in R.Janakiraman-v-State represented by Inspector of Police, CBI, SPE,Madras 2006(1) SCC 697 at 698 wherein it is held as follows: "Under the Evidence Act, 1872, Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91. The rule contained in Section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract(which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also. The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon' and urges before this Court that the petitioner is not precluded from proving a fact contradicting or varying the term of contract https://hcservices.ecourts.gov.in/hcservices/ and as a matter of fact, Section 91 of the Indian Evidence Act applies to the petitioner being a stranger. 9. He also relies on the decision in G.R.Krishna-v- S.K.Venkatachalam and others 1990 MLJ 260 at 261 wherein it is held thus: "As per Section 58(f) of the Transfer of Property Act, 1882 when a person delivers to the creditor or his agent documents of title to immovable property with intent to create a security thereof, that transaction is a mortgage by deposit of title deeds. Therefore, there must be delivery of documents of title. Ordinarily, any deed that vests title in a person is a documents of title. Obviously that deed is original deed. Therefore, when the Section says documents of title , it must be understood to mean original documents of title and not copies of original documents of title.' 10. It is the contention of the learned counsel for the petitioner that delivery of document of title to a person who is neither creditor nor agent of creditor will amount to equitable mortgage and to lend support to his contention, he relies on the decision in Sirish Kumar Bros by its Partner Sirish Kumar Baffna- v- The Official Assignee 2000(1) CTC 73 at paragraph 12 ,it is among other things held as follows: ". . . . . . . One of the essential conditions under Sec.58 (f) of the Transfer of Property Act is that there must be delivery of documents of title relating to immovable property with intent to create equitable mortgage was security thereon to the creditor or his agent. So, the delivery of documents must be to a creditor or his agent. The claimant was neither a creditor nor was he the agent of the financiers at the time of the delivery of the documents of title. Since the appellant is neither a creditor nor was he the agent of the creditors at the time of the deposit of the title deeds by the insolvements, such deposit will not amount to mortgage as defined under Section 58(f) of the Transfer of Property Act. Even though, there is memorandum of agreement for deposit of title deeds, that will not clothe the claimant with the right to enforce the mortgage for recovery of moneys subsequently lent by others to the insolvent." https://hcservices.ecourts.gov.in/hcservices/ 11. In short, the substance of the contentions of the learned counsel for the petitioner is that insofar as the petitioner is concerned, the respondent is not a creditor and therefore, the purported mortgage by deposit of title deeds created by means of deliverance of documents of title to immovable property, will not create any right on the part of the respondent to enforce the said mortgage by any means in the eye of law. 12. Besides the above, the learned counsel for the petitioner brings it to the notice of this Court that in security bond for collection of tax fee or other amount as per Form XIX-B as seen from the records produced by the respondent, there is no mention of witnesses column and in the said form, the signature of the surety alone is seen and in the form prescribed under the Tamil Nadu General Sales Tax Rules, there is a column on the left hand side for witnesses Nos 1 and 2 to sign and in the instant case, the column regarding the witnesses are conspicuously absent. However, a close perusal of Form XIX -B as seen from the records produced shows that after Sl.No.5 market value wherein it is mentioned as Rs.5,00,000/-and on the left hand side , a court fee of Rs.10/- has been affixed and therefore, one is not in a position to know whether the said court of fee of Rs.10/- has been affixed on the column where witnesses have been mentioned . However, this Court is of the view, the absence of the said column for witnesses is not a fatal or vitiating factor affecting the merits of the case. 13. Contending that the right to property has been guaranteed under Article 300 of Constitution of India, the learned counsel for the petitioner submits that such a guaranteed right cannot be taken away by any one much less the reason except due process of law and further draws the attention of this Court to Form D application for Registration as dealer in respect of the petitioner's son C.V. Sanjeev Kumar in column 11 A(d) at inner page 3 in the date of purchase/coming into possession was mentioned as 7.9.70 and the mode of acquisition was mentioned as self acquired Document No.1453/70 and the value of the property was mentioned as Rs.5,00,000/- and the location of the property was mentioned as Kallapalyam Village and extent was mentioned as 5 acres and as a matter of fact, the xerox copy of the sale deed dated 18.1.1950 stands in the name of the petitioner's wife viz., the mother of Sanjeev Kumar and in the xerox copy of the sale deed was of the year 1950 and the said sale deed does not contain any seal of the office of the respondent and also that in Form 19B has 1 and 2 witnesses but ion the Form 19B produced with files does not refer to the column witnesses and Form 19-B, Security Bond For Collection of Taxes there or other amount relied on by the respondent is not a valid form. 14. Advancing his arguments, the learned counsel for the petitioner submits that an equitable mortgage can be created by deposit of title deeds and as per Section 58(f) of the Transfer https://hcservices.ecourts.gov.in/hcservices/ of Property Act, the same can be created in certain specified town, but in the instant case, the property is situated at Kallapalayam Village which is not a notified place for creating an equitable mortgage and therefore, there cannot be any valid equitable mortgage in the eye of law. 15. The petitioner takes a plea that the Respondent has obtained his signatures in blank forms. 16. It is the contention of the learned counsel for the respondent that the writ petitioner being the father of Dealer Sanjeev Kumar,is an Assessee in another circle and he is having his own independent business and when the son viz., Sanjeev Kumar has fallen of arrears of Sales Tax then the same can be collected from the petitioner who is none else the father of the mortgagor Sanjeev Kumar and that no property is personally owned by the father and indeed, security bond form 19-B in the instant case was executed by the petitioner at Singanallur in Coimbatore and in fact, a lien has been created and as per Rule 24(15-A) of Tamil Nadu General Sales Tax Rules, the security shall be in any of the following forms viz., (1) immovable property (2) Deposit in Government Treasury by cash(3) Government promissory notes duly pledged in the name of the registering authority(4) Post Office Savings bank Deposits duly pledged in the name of the Registering authority etc. 17. In this connection, a perusal of the original Registration Certificate filed by TNGST, Tvl.Annapoorna Farm Equipments, Singanallur, Coimbatore at page 27 refers to the statement of the writ petitioner's son C.V.Sanjeev dated 24.12.1999 wherein he has stated that 'he has no properties in his name and in his father's name Kallapalayam Village at Palladam Taluk, there is five acres of agricultural land and after commencement of business and other manufacture by means of application, he has been paying tax and he has one brother and his father personally doing his agriculture. 18. The learned counsel for the respondent projects an argument that the issue as to whether, the assessee viz., the petitioner and his son C.V.Sanjeev Kumar, in his propriety business Sri Annapoorna Farm Equipments has deposited the xerox copy of the sale deed dated 18.1.1950 standing in the name of his mother with the respondent with an intention to create an Equitable mortgage or not? is certainly a disputed question of Law which cannot be traversed in the present writ petition and inasmuch as the parties to the writ petition has taken a divergent view in this regard, the dispute /controversy, can only be adjudicated by means of parties letting in oral and documentary evidence before a competent civil forum by means of filing a civil suit as held in the decision in Tamil Nadu Taxation Special Tribunal in the decision N.Padma Coffee Works-v- Commercial Tax Officer, Trichy 114 STC 494 which was later upheld by a Division Bench of this Court and this aspect of the matter https://hcservices.ecourts.gov.in/hcservices/ was taken note of by the Division Bench of this Court in Judgment in W.A.No.2097 of 2005 dated 22.4.2009 and as such the writ petition is per se not maintainable . 19. This Court pertinently points out that as per Section 24 (1) of Tamil Nadu General Sales Tax Act 1959, the period of stay cannot be excluded as per decision in M/s Western India Cashew Company, Quilon(Kerala State)-v- Tamil Nadu Taxation Special Tribunal, chennai 2004(2) MLJ 595 MAD . 20. Further, in respect of the recovery of arrears of Sales Tax a first charge is on the property of the Dealer. Hence, the tax assessed under the Sales Tax Act will have priority over all debts including a mortgage as per decision Punjab National Bank Asset Recovery Branch-vs- Commercial Tax Officer,II 2006 (3) M.L.J. 919 MAD 21. In Chinnamma -v- State of Tamil Nadu represented by a Collector, Kanyakumari District 2001 MLJ Suppl 192 MAD, it is held that ' if any tax is payable under the Act, a charge will be created and as such the transfer of such property would be void. 22. Continuing further, as per Section 24(2_ (b) of TNGST Act 1959, a Dealer in default and payment of recovery of tax, the proceedings before Magistrate is not liable to be quashed under Section 482 of Cr.P.C. As per decision in Tamilselvan-v- Deputy Commercial Tax Officer, Dharmapuri 2004 MLJ Cri.17 MAD. 23. It is well settled principle that the proceeding under Article 226 of Constitution of India under writ jurisdiction is a summary proceedings and in general a disputed question of fact or mixed question of fact and Law cannot be investigated as per decision Union of India-v- Ghaul AIR 1961 SC 1926. 24. On a careful consideration of respective contentions and in view of the fact that the petitioner's son C.V.Sanjeev Kumar, proprietor of Sri Annapoorna Farm Equipments, Singanallur, Coimbatore-15 in his statement dated 24.12.1999 has categorically stated that he has no properties in his name and that his father viz., writ petitioner is possessing five acres of agricultural land at Kallapalayam Village, Palladam Taluk etc and in view of the fact Section 24(2) of the Tamil Nadu General Sales Tax Act which speaks of 'Any tax assessed on or has become payable by or any other amount due under this Act from a dealer or person and any fee due from him under this Act, shall, subject to the claim of the Government in respect of land revenue and the claim of the Land Development Bank in regard to the property mortgaged to it under Section 28(2) of the Tamil Nadu Cooperative Land Development Banks Act, 1934( Tamil Nadu Act X of 1934), have priority over all the claims against the property of the said dealer or person and the same may without prejudice to any other mode of collection be recovered-,(a) as land revenue,or(b) on application to any Magistrate, by such Magistrate as if it were a https://hcservices.ecourts.gov.in/hcservices/ fine imposed by him etc, this Court is of the considered view that the disputed question of fact as to the creation of Equitable mortgage and in the absence of demand being made against the petitioner his property would not be attached etc cannot be gone into by this Court or the same cannot be completely and comprehensively decided by this Court on the basis of available materials on record in the present writ petition and the disputes/controversies can be agitated by necessary party before a civil forum by means of filing of a civil suit raising all factual and legal pleas and since Section 24(2) of the Tamil Nadu Sales Tax Act clearly enjoins that ' any tax assessed, or any amount due from a dealer or a person under the Act,shall priority over all the claims against the property of the dealer which can be recovered by means of land revenue etc, the present writ petition is per se not maintainable and resultantly this writ petition fails. 25. In the result, this writ petition is dismissed leaving the parties to bear their own costs. It is open to the petitioner to initiate a civil suit and seek appropriate remedy before the competent forum in the manner known to law, if so advised. Consequently, connected W.P.M.P is also dismissed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sg To The Deputy Commercial Tax Officer Palladam Circle Palladam Coimbatore District + 1 cc to Megan Law Firm,Advocate,SR.16710 + 1 cc to Special Government Pleader(Taxes),SR.16925 W.P.No.7766 of 2003 AKR(CO) EM/23.3.10 https://hcservices.ecourts.gov.in/hcservices/