TMI Blog2012 (6) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining amount is not paid, the amount already paid would be forfeited. The petitioner questions the action in the teeth of the fact that, property in question is not free from encumbrances, as, after purchasing the property, the petitioner was made to understand of the existing charge on the said property, Commercial Tax Department, Government of Madhya Pradesh to the tune of Rs.1,43,15,655/- towards outstanding Commercial Tax. 2. The undisputed facts carved out from pleadings and relevant for the present are that, the property in question belonged to Bhopal Transmission Control, a private limited company. The said Company availed credit/loan facilities from the respondent Nos. 1 and 2 Bank against the property in question mortgaged as security. 3. In due course of time since Bhopal Transmission Control Company having defaulted to repay the outstanding to the tune of Rs.11,72,67,00/- (Rupees Eleven Crores Seventy Two Lacs Sixty Seven Thousands only), led the Bank to declare the account as N.P.A and took recourse to Section 13 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter referred to as Act of 2002). 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner communicated with the Bank in following terms: To, The Senior Manager, UCO Bank Piplani Branch, Bhopal Sub: Regarding Extension of the date for purchase of immovable property of M/s. Bhopal Transmission and Controls Pvt. Ltd. (BTCL) Private Treatise. Dear Sir, We had already deposited Rs.25 lacs in the same account as per our commitment. We have also remitted another Rs.5 lacs on 14th February for depositing the same in the account. We were making all arrangements to arrange rest amount of Rs.1 crore to deposit in the account by 28th February as per our offer letter. However, in the meantime, we came to know that Commercial Tax Authorities have fixed a notice for auctioning the asset for Non-payment of their dues and the amount claimed by them is Rs.143 lacs which is very huge amount and unreasonably inflated. When we were intending to take this asset and at the same time to take the Company and also intend to clear these statutory taxes, negotiations with the Authorities, the sudden action initiated by the Commercial Tax Authorities have upset our original plant and programming. Under the mentioned circumstances we would request you the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid to have a charge on the property and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. 14. In the case at hand though auction notice dated 23.4.06 except making a mention that the property in question is being auctioned an as is where is basis, did not specifically mentioned that the Commercial Tax Department, Government of M. P. has a fist charge over the property, the petitioner is still not benefited because the transaction of property is not in pursuant to the said auction notice, but was purchased subsequently by the private negotiation which was only after the petitioner had satisfied himself regarding assets and liabilities incurred on the property in question. It cannot therefore, be assumed that, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejecting the said argument held that while constructive notice was sufficient to satisfy the requirement of notice in the proviso to Section 100 of the TP Act whether the transferee has constructive notice of the charge had to be determined on the facts and circumstances of the case. (extracted from paragraph 21 of decision in State of Karnataka v. Shreyas Papers (P) Ltd: (2006) 15 SCC 615). The facts of present case reveals that before entering into a private treaty through negotiation the petitioner had the constructive knowledge of the fact that, the property in question was charged to Commercial Tax dues. 18. That Section 49 of Adhiniyam 1994 stipulates: 49Tax payable by transferee of business:-(1) When the ownership of the business of a dealer liable to pay the tax is entirely transferred the transferor and the transferee shall jointly and severally be liable to pay the tax together with penalty, if any or interest or penalty in respect of such business for any year or relatable to a part of any year and remaining unpaid at the time of the transfer and the transferee shall also be liable to pay the tax on the sales or purchases of goods effected by him with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t repealed by Section 52 of Act No. 2 of 1959 of the Act repealed by this Act and due for any year of relatable to a part of any year period to such transfer of business, discontinuance or dissolution of the partnership or the partition of undivided Hindu Family, as the case may be. 19. In the instant case the material on record reveals that the petitioner since very inception had been interested in taking over the Bhopal Transmission Controls (P) Ltd. Company along with its assets and liabilities to own the same kind of business and produce related goods and tax to establish the manufacturing activity. This fact would be established from documents Annexures R/1, R/2, R/4 and R/8. Vide Annexure R/8 which is a communication dated 29.5.07 addressed to the Senior Manager of respondent Bank it is categorically stated by the petitioner that : we are not only taking assets from you, we are trying to take the Company as well. The Statutory Taxes of all the departments are so high which was not known to us before. Only the Sales Tax Component is Rs.143.00 lakhs. All the four departments-Salesn Tax, Central Excise, Corporation, Provident Fund, ESI have advertisements for auction of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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