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2011 DIGILAW 379 (PNJ)

Energy Aahar Pvt. Ltd. v. State of Haryana

2011-01-31

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J. (Oral):- The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 21.9.2010, Annexure P1, passed by learned Civil Judge, Senior Division, Rohtak, vide which application of petitioner filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for ad interim injunction order was dismissed as well as for setting aside order dated 11.12.2010, Annexure P2, passed by learned District Judge, Rohtak in appeal against the said order, which was also dismissed. 2. I have heard learned counsel for the petitioner-plaintiff and have gone through the whole record carefully including the impugned orders passed by both the courts below. 3. Brief facts relevant for the decision of present revision petition are that petitioner – plaintiff purchased property in dispute vide sale deed No.10241 dated 17.12.2009, from respondent-defendant no.8- Madan Lal Sharma. After purchasing the same he applied for sale tax number and however, the same was declined on the ground that suit land already stood attached vide order/letter No.2504 dated 24.2.2000, Order No.60 dated 26.2.2010 and Order dated 27.4.2000. 4. It has been contended by learned counsel for the petitioner-plaintiff that the said attachment orders and letters are illegal and that recovery, if any, is to be effected from respondent-defendant no.4 only and that no recovery can be effected from attachment of the land in dispute, which was already purchased by petitioner-plaintiff before its attachment. Further admitted facts are that the suit land was originally owned by respondent-defendant no.4, through its Directors, i.e., respondent -defendant nos.5 to 7. They initially sold the said property to defendant no.8 vide sale deed No.8930 dated 17.11.2009 and just after about one month of the said purchase by respondent-defendant no.8, the same was purchased by the present petitioner-plaintiff from defendant no.8, vide sale deed No.10241 dated 17.12.2009. 5. On these facts, the present suit was filed by present petitioner-plaintiff seeking relief of injunction restraining defendants from auctioning the suit land, also from interfering in the possession of petitioner-plaintiff of the land in dispute and also from implementing the orders of attachment passed in respect of the said property. 6. 5. On these facts, the present suit was filed by present petitioner-plaintiff seeking relief of injunction restraining defendants from auctioning the suit land, also from interfering in the possession of petitioner-plaintiff of the land in dispute and also from implementing the orders of attachment passed in respect of the said property. 6. On the similar facts, application under Order 39 Rules 1 and 2 read with Section 151 of the Code was also filed seeking ad interim injunction order, which was dismissed by learned trial court. Appeal filed against the said order was also dismissed by learned Appellate Court and hence, the present revision petition. 7. It has been contended by learned counsel for the petitioner-plaintiff that both the Courts erred in dismissing the application for ad interim injunction order and that rather liability, if any, is of respondent -defendant no.4 and not of present petitioner-plaintiff, who is bona fide purchaser for consideration and hence subsequent order of attachment cannot be said to be binding upon the present petitioner-plaintiff. On the point, he has also placed reliance upon judgments rendered by Hon’ble Apex Court in Hamda Ammal v. Avadiappa Pathar and others 1991 Civil Court cases 218 (S.C.) and Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and another 1990 Civil Court cases 526 (S.C.) and judgments of Kerala High Court in Abdul Jalal v. Mariya Financiers 2002 (2) Civil Court Cases 667 (Kerala) and Narayanan Nair v. Zacharia 1991 Civil court Cases 75 (Kerala), wherein it has been observed that attachment after execution of sale-deed was having no effect on the rights of the vendee, 8. As already discussed above, petitioner-plaintiff is claiming the right in the property in dispute by purchase vide registered sale deed No.10241 dated 17.12.2009 from previous owner, i.e., respondent-defendant no.8, who had purchased the same from respondent -defendant nos.4 to 7, one month prior to that. However, respondent -defendant no.2, i.e. Taxation Authority, Rohtak, vide order dated 25.5.2006, had raised demand of sale tax to the tune of Rs.3,22,80,160.00 under Section 33 of the Haryana General Sales Tax Act, 1973 (hereinafter to be referred as the ‘Act’) against respondent-defendant no.4 and the said outstanding amount was not paid. However, respondent -defendant no.2, i.e. Taxation Authority, Rohtak, vide order dated 25.5.2006, had raised demand of sale tax to the tune of Rs.3,22,80,160.00 under Section 33 of the Haryana General Sales Tax Act, 1973 (hereinafter to be referred as the ‘Act’) against respondent-defendant no.4 and the said outstanding amount was not paid. The same was ordered to be recovered as arrears of land revenue and while the said recovery proceeding was still pending, in a mala fide manner, respondent -defendant nos.4 to 7 sold the said property to respondent-defendant no.8 and later on respondent-defendant no.8 sold the same to the present petitioner-plaintiff. During recovery proceedings, the land in dispute was attached by respondent-defendant no.3 and hence from these facts, it is clear that a huge amount of sale tax was to be recovered from respondent-defendant no.4 by Excise and Taxation Department on the date of sale of land by defendant no.4 in favour of defendant no.8 and thereafter defendant no.8 in favour of plaintiff. 9. Law is well settled that at the stage of granting ad interim injunction order, the Court has to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and the fact as the whether an irreparable loss would be caused to the plaintiff, if ad interim injunction order is not granted. 10. From the above facts, it cannot be said that suit land was free from any incumbrances on the date of its purchase by defendant no.8 and then by present petition-plaintiff. Even as per Section 59A of the Act , any transfer of immovable property by a person, who is liable to pay any tax or other dues with intention to defraud recovery of any such tax or dues would be void. 11. Petitioner-plaintiff claimed itself to be bona fide purchaser of suit land which was not free from any incumbrances on the date of its purchase and however, for that purpose, it has been rightly observed by learned trial Court that petitioner-plaintiff may seek any efficacious remedy against respondent -defendant nos.4 to 8. Moreover, it is a matter of evidence whether petitioner-plaintiff is a bona fide purchaser for consideration. 12. Moreover, it is a matter of evidence whether petitioner-plaintiff is a bona fide purchaser for consideration. 12. At this stage, prima facie respondent-government has to recover more than Rs.3 crores of sale tax from respondent-defendant no.4 by sale of the land in dispute which belonged to respondent-defendant no.4, on the date of demand of the said amount of sale tax and who was having no right to sell the same to defraud the Government and to frustrate the right of the Government to recover the amount by sale of the said property. 13. In view of these facts, it cannot be said that prima facie case is made out in favour of petitioner or balance of convenience lies in its favour or irreparable loss would be caused to it, if it is not granted ad interim injunction order. Rather, prima facie case in favour of respondent nos.1 to 3 is made out and balance of convenience also lies in their favour and irreparable loss would be caused to them, if they are restrained from recovery of the amount of sale tax of more than Rs.3 crore by attachment and sale of the property in dispute, which was owned by respondentdefendant nos.4 to 7 on the date of demand. 14. Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 15. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by both the Courts below in passing the impugned orders and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 16. The present revision petition is hereby dismissed being devoid of any merit. -----------0.K.B.0------------