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TMI Blog2019 (4) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... perty currently owned by the Petitioner within seven days from the date of receipt of the notice failing which steps would be taken to bring the property to sale under the Tamil Nadu Revenue Recovery Act. 2.The relevant facts of this case are simple. From the Impugned Notice dated 23.6.2006, it appears that M. Bhagyavathi was the Sole Proprietrix of Abirami Chemicals, which was registered as a dealer under the TNGST Act. It also appears that the said dealer had not paid sales tax dues in respect of the assessment years 1993-94 and 1994- 95 and that the said dues aggregated to a sum of Rs. 7,48,698/- with interest thereon as of the date of notice from the respondent to the petitioner. 3.As per the above mentioned notice, a security bond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r acquired the said property from M.Bhagyavathi for a total sale consideration of Rs. 3 lakhs. The Petitioner appears to have obtained an encumbrance certificate dated 02.12.1998 for the period November 1996 to December 1998 and the encumbrance certificate shows "nil" encumbrance during the aforesaid period. The Impugned Notice, as is evident from the notice, was sent to the Petitioner about eight years later. 5.The learned counsel for the Petitioner adverted to the facts set out above and contended that the Respondent cannot claim sales tax dues of the erstwhile owner from the Petitioner. He further contended that the charge against the property cannot be enforced against the Petitioner because the Petitioner is a bona fide purchaser for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealer. 8.The affidavit, counter affidavit, documents and oral submissions of both parties were considered carefully. 9.In view of the fact that the Respondent claims to have an enforceable charge and not a mortgage in respect of the property, it is pertinent to advert to Section 100 of the Transfer of Property Act, 1882 (the TPA), which reads as under: "Charges-where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge of the property; and all the provisions herein before contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Noth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual or constructive, of the existing charge. The Hon'ble Supreme Court in AHMEDABAD MUNICIPAL CORPORATION Vs. HAJI ABDUL GAFUR HAJI HUSENBHAI reported in AIR 1971 SC 1201, held that a charge cannot be enforced against a bona fide purchaser without prior notice unless the relevant statute confers an express right to enforce the charge against a transferee without notice. 11.This leads to the next question as to whether Section 24-A of the TNGST Act contains a stipulation that the charge can be enforced even against a transferee without notice. For this purpose, it is necessary to also set out Section 24 (1), i.e. the charge creating section, which reads as under: "Save as otherwise provided for in subsection (2) of section13, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 1998 108 STC 161 (DB-Mad) wherein the Court followed the decision of the Hon'ble Supreme Court in AIR 1971 SC 1201 (cited supra) and held that the decisions of earlier Division Benches of this Court in DEPUTY COMMERCIAL TAX OFFICER Vs. ASHA KUMARI reported in 1985 WLR 240 and COROMANDEL INDAG PRODUCTS PVT LTD Vs. COMMERCIAL TAX OFFICER reported in 1993 (3) MTCR 8 did not consider the judgment of the Hon'ble Supreme Court reported in AIR 1971 SC 1201 and that, therefore, the said decisions could not be followed. Subsequently, in a recent judgment of the Division Bench of this Court in GUPTA Vs. COMMERCIAL TAX OFFICER, W.P.No.6267 of 2006, decided on 09.03.2018, the earlier Division Bench Judgment in R.K.STEELS CASE (cited a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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