Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, V. BHAVANI SUBBAROYAN, JJ.
M/s. Gupta & Company – Petitioner
Versus
The Commercial Tax Officer, Chennai & Others – Respondents
W.P. No. 6267 of 2006
Decided On : 09-03-2018
Code of Civil Procedure, 1908 – Section 92 – Permanent Injunction – Plaintiffs filed applications I.A. in O.S. and I.A. in O.S. under Section 92 C.P.C. for leave to file the suits – In I.A.No.997 of 2006 in O.S.No.403 of 2006, leave was granted on 23.08.2006. – In O.S.No.421 of 2006, an application under Section 92 C.P.C. has been filed and it was numbered as I.A.No.1017 of 2006 earlier, in which, notice was ordered on 04.09.2006. – While the suits and applications are pending, the plaintiffs filed various applications for various reliefs mentioned therein. – The respondents in C.R.P.No.4862 of 2013 filed I.A.No.600 of 2012 in I.A.No.344 of 2009 (earlier application I.A.No.1017 of 2006) in O.S.No.421 of 2006 to hear I.A.No.344 of 2009 first. – The respondents in C.R.P.No.4863 of 2013 filed I.A.No.601 of 2012 in O.S.No.403 of 2006 to hear I.A.No.716 of 2011 (earlier I.A.No.34 of 2007) to revoke the leave already granted to the plaintiffs at the first instance before hearing the other applications. – Held, It is uniformly held that leave to institute the suit against the Public Charitable or Religious Trust is a pre-condition, there will be no properly instituted suit under law before formal leave is granted, the Court must examine the averments in the plaint to find out the grounds for cause of action and only after satisfying that intervention of the Court is necessary for proper management of the Trust, Court can grant leave to institute the suit. – Only after leave is granted other Interlocutory Application can be considered and orders can be passed. – Judge has held that application for leave to institute the suit and application for revoking leave already granted must be heard first before other applications filed by the petitioners for interim relief pending suit can be heard and decided. – There is no irregularity in the impugned order of the learned Judge as Section 92 of C.P.C, contemplates leave of the Court to institute the suit and decisions referred to above it had been held that leave to institute the suit is a pre-condition and without deciding the application for leave to institute, other Interlocutory Application cannot be heard. – Civil Revision Petitions Dismissed
S. Manikumar, J.
1. Auction purchaser/writ petitioner has challenged Form No.5 in Rc.23/2006/A3 dated 16.01.2006 of the Commercial Tax Officer, Alandur Assessment Circle, first respondent herein, towards recovery of arrears of Rs.6,94,09,527/-, for the years 1995-96 and 1996-97, and sought for a Writ of Certiorari to quash the same.
2. Facts leading to the writ petition are that the petitioner had purchased immovable property bearing Door No.2/4, Mount Poonamallee Road, Chennai - 58 situated in 102, Ramapuram village, Saidapet Taluk, Chengelpet District, comprised in part of Survey No.151/2 in Patta No.184 measuring 50 cents, by way of sale in public auction held on 17.04.2003, conducted by the Recovery Officer II, Debt's Recovery Tribunal I, Chennai, fourth respondent herein, for a sale consideration of Rs.1,20,10,000/- in execution of Certificate No.150/2002, dated 27.08.2002 issued in O.A.No.1032/1998 by the Debt's Recovery Tribunal, Chennai - 2, for recovery of debts due to State Bank of India, represented by its Branch Manager, fifth respondent herein, from M/s.Moolchand Industries Ltd., and 10 others.
3. Petitioner has further contended that, after clearing all the Income Tax formalities, the Recovery Officer II, Debt's Recovery Tribunal I, Chennai, fourth respondent herein, issued a sale certificate, dated 22.05.2003 in favour of the petitioner and the same was duly registered as Document No.828/2003 on the file of the Joint Sub-Registrar-II, Saidapet, Chennai-15. Since 22.05.2003, the petitioner is in absolute possession and enjoyment of the property.
4. Vide order of this Court, in C.P.No.254/1994, dated 22.06.2000, Official Liquidator was appointed for M/s.Moolchand Exports Limited, (In Liquidation), Chennai. Petitioner has also purchased another immovable property bearing Door No.2/4, Mount Poonamallee Road, Ramapuram, Chennai - 89, measuring 50 cents under Survey Nos.151/1B and 152/2C for sale consideration of Rs.80,00,000/- from the Official Liquidator, High Court of Madras, the third respondent herein, representing M/s.Moolchand Exports Limited, (In Liquidation), Chennai.
5. Sale of the above immovable property by Official Liquidator, High Court of Madras, representing M/s.Moolchand Exports Limited, (In Liquidation), Chennai, third respondent herein, was confirmed by the High Court order dated 14.10.2004 in C.P.No.254/1997 and C.A.No.654/2004.
6. Vide notice dated 05.01.2006 in Rc.23/2006/A3, Commercial Tax Officer, Alandur Assessment Circle, first respondent herein, informed the petitioner that one M/s.Moolchand Exports Limited, a company in liquidation, an assessee on the file of the Commercial Tax Officer, Nandanam Assessment Circle, Chennai, second respondent herein, was in arrears of sales tax to the extent of Rs.3,85,99,770/- for the years 1993-94 to 1996-97 and that the arrears accrued during the year 2000.
7. First respondent has further informed the petitioner that since the assessee/defaulter has sold the property without discharging the sales tax liability and as per the provisions of Tamil Nadu General Sales Tax Act, 1959, a charge had been created over the property for the sales tax amount due by the M/s.Moolchand Exports Limited, defaulter, and such charge can be enforced against the property transferred in the hands of the petitioner.
8. Vide notice dated 05.01.2006, first respondent herein, instructed the petitioner to file reply to the show cause as to why Revenue Recovery proceedings should not be taken against the petitioner for the recovery of arrears of sales tax due by M/s.Moolchand Exports Limited, the defaulter under the Revenue Recovery Act.
9. It is the further case of the petitioner that, the first respondent herein, without waiting for any reply, initiated proceedings under Revenue Recovery Act and issued notice in Form 4 as per Section 25 of the Revenue Recovery Act and directed the petitioners to pay a sum of Rs.3,85,99,770/-, within 7 days from the date of receipt of the said notic
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
