IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 73 of 2009()
1. LALITHA TRIPURA SUNDARI D/O.PAZHANI
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE TAHASIDAR REVENUE RECOVERY,
For Petitioner :SRI.A.R.GANGADAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.BHASKARAN NAMBIAR (RETD.JUDGE)
SHRI K.J.THOMAS STANLEY(RETD.ADDL.DIST.JUDGE)
Dated :25/03/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.73 of 2009
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Dated this the 15th day of June, 2009
JUDGMENT
This Second Appeal is directed against the judgment and decree in
A.S. 272/2003 on the file of the District Court, Palakkad which arises from
the judgment and decree in O.S No. 180/1997 on the file of the Sub -court,
Palakkad. The plaintiff’s case is that she is the absolute owner of the plaint
schedule property. She purchased the same from one D.Aravindan as per
sale deed No.5857/1995 dated 15.09.1995. The plaintiff was served with
a notice from the office of the 2nd defendant demanding an amount of
Rs.1,01910/- as Sales Tax arrears due from M/s Radhakrishnan and
Company. In the notice it was stated that the plaint schedule property
would be attached and sold for the amount demanded. The further case of
the plaintiff is that she has nothing to do with the firm, that the
Radhakrihnan and Aravindan are the partners of the firm, that the plaint
schedule property is not the property of the partnership firm and no
amount is due from the plaintiff to the Government. Therefore the suit was
filed for permanent prohibitory injunction restraining the defendants from
selling the plaint schedule property and for a mandatory injunction directing
the defendants to lift the attachment.
2. The trial court on evidence found that the said Aravindan is
personally liable for the sales tax arrears due from the firm. The trial court
held that ” Section 26 A of the Kerala General Sales Tax Act stipulates
R.S.A. 73 of 2009 -2-
that “where during the pendency of any proceedings under this Act or after
the completion thereof, any assessee creates a charge on, or parts with the
possession (by way of sale, mortgage, gift, exchange or any other mode
of transfer whatsoever) of any of his assets in favour of any person, such
charge or transfer shall be void as against any claim in respect of any tax
or any other sum payable by the assessee under this Act” In such
circumstance the trial court rightly held that the plaintiff cannot claim to be
the title holder and in possession of the plaint schedule property. I am
also of the view that in view of Section 26A of the said Act the transfer
mentioned in this Second Appeal is void abinitio. Such a transfer shall
be void as against any claim in respect of any tax or any other sum payable
by the assessee under this Act. The dismissal of the suit by the trial court
based on the above said provision and the confirmation by the lower
appellate court are just and proper. I find no reasons to interfere with the
judgments and decrees passed by the courts below. No question of law
much less any substantial question of law arises for consideration in this
appeal. There is no scope for invoking Section 100 of the C.P.C. This
appeal fails and accordingly dismissed.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A.No.73 of 2009
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JUDGMENT
15th June, 2009