TMI Blog1979 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 1949-50 and 1950-51 a sum of Rs. 308.25 and Rs. 138.19, respectively, became due and payable to the plaintiff by the defendant on account of income-tax. Similar notice under s. 29 of the Indian I.T. Act was issued on defendant No. 1 and certificate proceedings were started for realisation of the same. The defendant failed and neglected to pay the said sum to the plaintiff. Defendants Nos. 1 and 2 were the owners of premises No. 41, Radha Madhab Saha Lane, Calcutta. After the issue and due service of the notice under s. 7 of the Bengal Public Demands Recovery Act defendants Nos. and 2 transferred and/or conveyed at Calcutta on October 1, 1951, the said premises to defendant No. 3. Defendant No. 3 in her turn on January 19, 1952, conveyed and/or transferred the said premises to defendant No. 4. The case of the plaintiff is that after the service of the notice under the Public Demands Recovery Act a charge is created immediately on the said immovable property for the payment of the dues of the plaintiff. It is further the case of the plaintiff that anybody who has acquired the property after the service of the demand notice has taken the property subject to the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the said Act. In this case notice was served on May 23, 1951, and conveyance in respect of the said property was effected on 1st October, 1951, in favour of defendant No. 3. The certificate debtor has deliberately violated the provision of law by making a transfer of the said property after due service of the notice. Defendants Nos. 1 and 2 have not disputed the mode of service of the notice under s. 7 of the Public Demands Recovery Act and also of the certificate proceedings. In fact, the certificate debtor appeared before the ITO and asked for time and for stay of the proceedings on the ground that he has filed an appeal from the original assessment order. Ultimately, the said appeal was dismissed. As such defendant No. 1 becomes admittedly a certificate debtor. In fact defendant No. neither challenged nor took any steps to set aside the certificate proceedings and/or challenge the service of the notice under the said Act. After the notice was duly served under the Public Demands Recovery Act all subsequent transfers become void so far as the plaintiff is concerned. Mr. Mitra appearing on behalf of defendants Nos. 3 and 4 submitted that as defendants Nos. 3 and 4 are bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of documents. From that order sheet it will appear that defendant No. 1 has been described as a certificate debtor and he has accepted the said position by appearing before the certificate officer and praying for time so that he could appeal from the certificate proceedings. Defendant No. 1 has been served in accordance with law. Even assuming that he was not properly served, that irregularity has been rectified by the certificate debtor himself by not only waiving his right of challenging the mode of service of notice but also by appearing before the certificate officer and accepting the knowledge of the said service and also by appealing from the said order. In the written statement filed on behalf of defendants Nos. 3 and 4 nowhere they had taken the point by challenging the mode of service or irregularity thereto. As such no issue was framed to that effect. In fact defendants Nos. 3 and 4 proceeded on the basis that there had been certificate proceeding but as they are bona fide purchasers of value and without any knowledge of the certificate proceedings, as such they are not bound by the provisions of the Public Demands Recovery Act. In fact in para. 5 of the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te is filed, or of any interest in any such property shall be void against any claim enforceable in execution of the certificate ; and (b) the amount due from time to time in respect of the certificate shall be a charge upon the immovable property of the certificate debtor wherever situated to which every other charge created subsequently to the service of the said notice shall be postponed. " The service of s. 7 notice binds the immovable property and prevents alienation against the claim of the certificate and makes the certificate holder a simple mortgagee for all practical purposes. A private transfer is not absolutely void but void against any claim enforceable under this Act. Clause (b) of the section gives the jurisdiction to a certificate officer to order the sale of a property belonging to the certificate debtor but situated outside the territorial jurisdiction of the Certificate Officer. From the language of subcl. (b) of s. 8, it is clear that the amount due in respect of the certificate shall be a charge upon the immovable property of the certificate debtor wherever the property is situate. Under sub-cl. (a) of s. 8 of the said Act in the case of private transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed for enforcement of the charge as created under s. 8(b) of the Public Demands Recovery Act. It is a charge created by operation of law. Regarding Mr. Mitter's point that his clients are bona fide purchasers for value and as such their interest should be protected, there is no provision in the Act itself which gives relief or protection to a purchaser for value who has purchased the value without notice of the service under s. 7 of the said Act. As soon as a notice is served on the certificate debtor the provision of s. 8 comes into operation automatically. As such whether the purchaser has purchased the property subsequent to the service of the notice under s. 7 without notice or not becomes immaterial. Moreover, in this case, save and except the requisition of title, the formal proof of which was dispensed with by consent of the parties, there is no evidence on the part of defendants Nos. 3 and 4 that they are bona fide purchasers for value. Moreover, the requisition on title has also no evidentiary value in view of the fact that only formal proof of that document has been dispensed with but the contents of the same have not been admitted by the plaintiff. The only d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
