TMI Blog2009 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... ated above, the writ appeal fails and the same is dismissed. - W.A. No. 2097 of 2005 - - - Dated:- 22-4-2009 - MOHAN RAM K. AND DURAISWAMY M., JJ. The judgment of the court was delivered by K. MOHAN RAM J. The above writ appeal is directed against the order of the learned judge dated July 14, 2005 (S. Kumar v. Commercial Tax Officer, Udumalpet), passed in W.P. No. 5155 of 2003. The writ petitioner is the appellant in the above appeal. The brief facts which are necessary for the disposal of the above appeal are set out below: It is the case of the appellant that he purchased a house from the third respondent under a registered sale deed dated May 29, 2002, under a registered document No. 2194 of 2002 in the office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es tax arrears of the second respondent and the security given by the third respondent and he was not put on notice about the sales tax arrears of the second respondent and the security given by the third respondent. Aggrieved by the aforesaid demand raised, the appellant filed the above writ petition, seeking for the issue of a writ of certiorari to quash the order of the first respondent dated December 13, 2002. The writ petition was dismissed by an order dated July 14, 2005 by the learned judge basing reliance on the decision of the Division Bench of this court confirming the decision in N. Padma Coffee Works v. Commercial Tax Officer, Trichy [1999] 114 STC 494 (TNTST), giving liberty to the petitioner to agitate all the issues before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been further stated in the said latter that if any default is committed in the payment of sales tax, she had undertaken to pay the same. The learned Government Advocate (Taxes) submitted that along with the said letter dated April 2, 1996, the third respondent had submitted a copy of the sale deed pertaining to the said property with an intention to give the property as security for payment of any tax arrears that may be due from the second respondent. The learned Government Advocate further submitted that the contents of the letter dated April 2, 1996 and the deposit of the copy of the sale deed if cumulatively considered then it could be inferred that an equitable mortgage has been created by the third respondent, who is the wife of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State Bank of Mysore reported in AIR 1990 Ker 157. In the said decision, after considering the provisions contained in section 58 of the Transfer of Properties Act, 1882, the Kerala High Court has held that it could not be said that merely because the original title deed was not filed, no equitable mortgage was created. It is further held that it could not be said that only in cases where the original title deed is lost the deposit of a registration copy can validly create an equitable mortgage. The learned Government Advocate also relied upon the decision of the Full Bench of this court in Chief Controlling Revenue Authority, Madras v. Pioneer Spinners Private Ltd. reported in AIR 1968 Mad 223, wherein the Full Bench has held as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been laid down by the Tamil Nadu Taxation Special Tribunal in the decision in N. Padma Coffee Works v. Commercial Tax Officer, Trichy [1999] 114 STC 494 (TNTST), which was subsequently upheld by the Division Bench of this court and that was the reason why the learned judge has not entertained the writ petition, but has given liberty to the writ petitioner to file a civil suit. We have considered the above submissions made on either side and we are of the considered view that the issue as to whether any equitable mortgage was created by the third respondent or not is a question of fact to be pleaded in a suit and decided on the basis of the evidence to be adduced in the suit. Such disputed questions of fact cannot be gone into in the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
