A charge created by operation of law has precedence over an existing mortgage.

1.The present writ petition is filed aggrieved by the notification No.9 dated 7.8.1989 issued by the first respondent relating to the attachment and proposed sale by public auction of the land measuring about 3.35 acres in total comprised in survey No.439/5 and patta No. 513 of No. 189 Sholinganallur village, Saidapet Taluk, Chingleput District and another extent of 1 acre in the same Survey No.

2. The case of the petitioner is that in order to discharge the loan obtained by M/s Easwari Engineers Private Limited and on a request of one Mrs. Rajeswari Duraisamy the original owner of the land measuring an extent of 2.35 acres, the petitioner herein rendered financial assistance to the tune of Rs.7 lakhs which had been deposited in the main branch of Karur Vysya Bank in November, 1983 and subsequently credited on 18.11.1986 in the account of the said loan. It is the case of the petitioner that in order to discharge the said sum of Rs. lakhs, the said Mrs. Rajeswari Duraisamy offered to sell an extent of 2.35 acres of land given as security to Karur Vysya Bank for a sum of Rs.5 lakhs and promised to sell the remaining extent of 1 acre of land for the balance of Rs.2 lakhs. In view of the above understanding, the owner of the land has executed three sale deeds which were registered on 23.11.1988 at the office of the Joint Sub Registrar, Madras. It is also stated that the possession of the land has been handed over to the petitioner herein. While things stood thus,on 23.9.1989, the petitioner was served with a notice of the first respondent dated 29.8.1989 enclosing the notification that the land measuring about 2.35 acres comprised in Survey No.439/5 and patta No.513 of No.189 Sholinganallur Village and another extent of one acre in the same survey number had been attached under Section 27 of the Madras Revenue Recovery Act (Act 2 of 1864) and that the said land would be sold by public auction under the provisions of the Tamil Nadu Act 2 of 1864. It is also stated in the said notification that the said attachment and the sale have been initiated for the alleged non payment of sales tax arrears by M/s Easwari Engineering Co. and M/s. Easwari Engineers Private Limited. It is also averred in the writ petition that the vendor of the petitioner has never mentioned that there was such attachment over the said property. As the entire consideration amount has been paid to Karur Vysya Bank towards discharge of the loan, he bonafidely agreed to purchase the entire land of 3.35 acres and it has been argued that the said proposed attachment and the auction could not be sustained in law. It has also been argued that he was not aware of the attachment and also the arrears of sales tax being the bonafide purchaser of the property. He had no notice of the charge also. Hence the charge under Section 24(1) of the Sales Tax Act cannot be enforced against the transfer of property from a defaulter. It has also been argued that the Revenue Recovery Act cannot be resorted to against a person who is not a defaulter. It is the further argument of the learned counsel for the petitioner that under Section 100 of the Transfer of Property Act, a bonafide purchaser for consideration without notice of the sales tax arrears is protected. to substantiate his contention, learned counsel for the petitioner has relied upon the decision of the Division Bench of this court in Deputy Commercial Tax Officers. Thudiyalur Assessment Circle, Coimbatore v R.K. Steels, 1998 (I) CTC 124 : 108 STC 161 wherein the Division Bench, relying upon the decision of the Supreme Court in Ahmedabad Municipal Corporation of the City of Ahmedabad v Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201, has held that the property of the bona fide purchaser without notice of the charge under Section 24(2) of the Sales Tax Act cannot be proceeded against for recovery of the sales tax arrears. In this case also, the petitioner has stated that he was a bona fide purchaser for considerat