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Speedcrafts (Private) Limited vs The State Of Bihar And Ors. on 24 September, 1982

Patna High Court
Speedcrafts (Private) Limited vs The State Of Bihar And Ors. on 24 September, 1982
Equivalent citations: 1982 (30) BLJR 553, 1983 52 STC 251 Pat
Author: S Choudhuri
Bench: S Choudhuri, U Sharma


JUDGMENT

S.K. Choudhuri, J.

1. This writ application has been filed under Articles 226 and 227 of the Constitution of India in which the petitioner prays for issuance of a writ of certiorari quashing the orders contained in annexures 1, 2, 3 and 4. Annexure 1 is the order dated 27th January, 1975, passed by the certificate officer (respondent No. 6) rejecting the objection of the petitioner and holding that the certificate dues in the certificate proceeding which has been initiated for realisation of the arrears of sales tax, will be realised from the property which has been transferred to the petitioner by the Bihar State Financial Corporation, Patna (respondent No. 7). Annexure 2 is the appellate order passed by the Collector, Patna (respondent No. 3), dated 7th February, 1978, by which he has rejected the appeal on the ground that the appeal was not maintainable as 40 per cent of the certificate dues have not been deposited. Annexure 3 is the order of the Commissioner, Patna Division (respondent No. 4), dated 10th March, 1980, in which he has found the order of the certificate officer on all the points to be correct. However, he held that the appeal before the Collector was maintainable and 40 per cent of the certificate dues was not required to be deposited. Annexure 4 is the order passed by the Member, Board of Revenue (respondent No. 2), dated 16th July, 1981, by which the contentions of the petitioner have been rejected and the judgment of the authorities below have been affirmed.

2. In order to appreciate the points raised in this writ application, it will be necessary to state the salient facts which are not in dispute.

The property in the hands of the petitioner originally belonged to the Hindustan Bicycle Manufacturing and Industrial Corporation Limited (“H.B.C” for short). It appears that sales tax for different periods were not paid by the said H.B.C, and accordingly, for realisation of the sales tax for the period 1947-48 to 1957-58, several certificate cases were initiated on requisitions filed by the Assistant Commissioner of Commercial Taxes. It has not been disputed before this Court that the notice under Section 7 of the Bihar and Orissa Public Demands Recovery Act (“P. D. Act” for short) was served on the H.B.C, sometime before 9th April, 1956. It is also not disputed that on 14th July, 1958, the said H.B.C. sold the property in question under a registered deed to the v Hindustan Vehicles Limited (“H.V.L.” for short). On 5th September, 1959, the H.V.L. took a loan of Rs. 10,00,000 (ten lacs) from respondent No. 7, an authority constituted under Section 3 of the State Financial Corporations Act, 1951 (63 of 1951), hereinafter called “the Act”, and mortgaged the said property to respondent No. 7 as security for the said loan. It is said that it was an English mortgage and was made on 5th January, 1959. Some certificate cases were also filed by the sales tax department against the H.V.L. for realisation of sales tax dues for the period after the aforesaid transfer by the H.B.C. to the H.V.L.

The H.V.L. is said to have made default in payment of the corporation dues, and therefore, on 27th November, 1971, in purported exercise of the powers conferred under Section 29 of the Act, respondent No. 7 sold the property to the petitioner under a registered deed in which in Clause 6 it was mentioned that the said property, which is being conveyed, is free from all charges, liabilities, encumbrances and claims and the Financial Corporation (respondent No. 7) shall keep the purchaser indemnified against the same. This property was purchased for a consideration of Rs. 15.20 lakhs. This sale is said to have been conducted by the Financial Corporation (respondent No. 7) by inviting tenders and the petitioner being the highest tenderer, the property was sold to it.

3. It will be relevant to state here that after the transfer by the H.B.C to the H.V.L., fresh notices were served upon the latter, which on receiving them filed objections before the certificate officer. The said objections were allowed by the certificate officer. The requisitioning officer thereafter filed appeals. Those appeals were allowed on 18th September, 1970, by the Collector and the certificate cases were allowed to proceed for realisation of the certificate dues against the H.V.L. It was further held that the H.V.L. was the transferee under Section 20 of the Bihar Sales Tax Act, 1947, from the H.B.C., on 14th July, 1958, and therefore, the certificate dues are realisable from the property transferred to H.V.L.

4. As during the pendency of these certificate cases, the property was sold on 27th November, 1971, by the Financial Corporation to the petitioner about which I have already stated above, an order was passed in the certificate cases to serve notices under Section 7 of the P.D. Act upon the petitioner and also the Financial Corporation. It is said that the notices were served on them on 9th August, 1973. Two objections were filed ; one by the petitioner and the other by the Financial Corporation. Both the objections have been rejected by the certificate officer by his order dated 27th January, 1975, as contained in annexure 1. It appears from the order (annexure 1) that the stand of the petitioner was fully supported by the Financial Corporation. The contention put forward on behalf of the Financial Corporation was that the property sold by them to the petitioner under Section 29 of the Act was free from encumbrances, and therefore, the certificate dues are not realisable either from the Financial Corporation or from the petitioner. The certificate officer, however, held that the sale by the H.B.C. as also by the Financial Corporation are hit under the provisions of Section 8 of the P.D. Act, and the mortgage dues of the Financial Corporation would remain postponed under the said section as notice under Section 7 of the P.D. Act was already served on the H.B.C. The certificate officer, therefore, held that the sales tax dues are recoverable from the property in the hands of the petitioner, as the sales tax dues have become charge on those properties after service of notice under Section 7 of the P.D. Act. The certificate officer also held that Section 46-B of the Act does not absolve the properties of the charge created upon them merely by sale of the same by the Financial Corporation to the petitioner. He also held that the recovery proceedings, namely, the certificate proceedings, are against the property and charged to the extent of the certificate dues, and the H.V.L., being the transferee was liable to pay, and therefore, the property being now in the hands of the petitioner, the due is recoverable from that property.

5. As against the order of the certificate officer, the petitioner preferred an appeal and having lost in appeal, it preferred a revision application before the Commissioner, which also having lost, ultimately preferred revision before the Member, Board of Revenue, and the same having been lost, the petitioner has approached this Court by filing this writ application.

6. I shall first deal with the main contention put forward by Mr. Shreenath Singh, the learned counsel appearing on behalf of the petitioner. He contended that what is prohibited under Section 8 of the P. D. Act is any private transfer or delivery of any immovable property after service of notice under Section 7 of the P.D. Act, and in the present case, the sale to the petitioner being made by the Financial Corporation, which is the statutory authority, in exercise of its power under Section 29 of the Act, the sale would be considered to be involuntary, and therefore, the prohibition contained in Section 8 of the P.D. Act would not apply to the transaction of transfer by the Financial Corporation to the petitioner. It was fairly conceded by Mr. Singh that if it is held by the court that it was a private transfer, then this argument put forward by him would fail. The question, therefore, to be answered is as to whether the transaction of sale by the Financial Corporation to the petitioner was a voluntary sale or an involuntary sale. If the answer is that it was an involuntary sale, then the argument put forward by Mr. Singh has to be accepted. If, however, it is held that the said transaction was a private transfer, then it will be hit by Section 8 of the P.D. Act, in view of service of notice under Section 7 of the P.D. Act already effected upon the certificate-debtor. It is, therefore, necessary here to read Section 8 of the P.D. Act as well as Section 29(1) of the Act. Section 8 of the P.D. Act reads thus:

8. Effect of service of notice of certificate.–From and after the service of notice of any certificate under Section 7 upon a certificate-debtor–

(a) any private transfer or delivery of any of his immovable property situated in the district, or in the case of a revenue-paying estate, borne on the revenue-roll of the district in which certificate 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 such property, to which every other charge created subsequently to the service of the said notice shall be postponed.

Sub-section (1) of Section 29 of the State Financial Corporations Act, 1951, reads thus :

(1) Where any industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any instalment thereof, or in meeting its obligations in relation to any guarantee given by the Corporation, or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation.

Under Section 8(a) aforesaid, if any private transfer of the property is made after service of notice under Section 7 of the P. D. Act, then such transfer shall be void as against any claim enforceable in execution of the certificate proceedings and under Clause (b) of that section such certificate due is made a charge on such a property and other charges, which are created subsequently to the service of notice under Section 7 shall remain postponed.

Section 29(1) of the Act, which has been quoted above, has to be carefully read. Under Sub-section (1), no doubt a right to transfer by way of lease or sale has been given to the Financial Corporation, if any default in repayment of the loan is made by any industrial concern. It has not been disputed that the petitioner is an industrial concern. The question is how to enforce this right which has been given under Sub-section (1) to the corporation ? Section 31 of the Act is a special provision for enforcement of claims by the Financial Corporation. This provision has two sub-sections. They read thus :

(1) Where an industrial concern, in breach of any agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the corporation, or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under Section 30 and the industrial concern fails to make such repayment, then, without prejudice to the provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act, 1882, any officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely:

(a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or

(b) for transferring the management of the industrial concern to the Financial Corporation ; or

(c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern “without the permission of the Board, where such removal is apprehended.

(2) An application under Sub-section (1) shall state the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is made and such other particulars as may be prescribed.

Under this provision a person may be generally or specially authorised by the Board to apply to the District Judge within whose jurisdiction the industrial concern carries on business on the whole or a substantial part of its business for one or more of the reliefs mentioned in Clauses (a), (b) and (c) of Sub-section (1). This remedy is, however, “without prejudice to the provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act, 1882”. Section 69 of the Transfer of Property Act gives power of sale without the intervention of the court in the cases falling in Clauses (a), (b) and (c) of Sub-section (1) of that section. The mortgagor was the H. V. L., and it was a public limited company registered under the Indian Companies Act, 1930, and the mortgagee was the Bihar State Financial Corporation, a corporation established under Section 3 of the Act. It is not disputed that the said mortgage was an English mortgage and there was default in payment of dues of the corporation under the mortgage deed, and thus there was a breach of the instalment clause. Therefore, Clause (a) of Section 69(1) of the Transfer of Property Act was attracted, the mortgagor being a public limited company and the mortgagee being a corporation. In cases falling under Clause (a), power of sale without the intervention of the court is not necessary to be mentioned in the mortgage deed. However, it is so necessary in cases falling under Clauses (b) and (c) of Section 69(1) of the Transfer of Property Act. A copy of the mortgage deed was supplied to us by the learned counsel for the Financial Corporation with the consent of the learned counsel for me petitioner. It shows that express power of sale without the intervention of the court was given to the mortgagee, in case of default in payment of instalments. It appears that that was mentioned by way of abundant caution as it may be helpful in case Clause (b) of Section 69(1) of the Transfer of Property Act would apply. Thus it is clear that the sale was held by the Financial Corporation by virtue of the powers under Section 69(1)(a) of the Transfer of Property Act, read with Section 29 of the Act. That being so, it is not necessary to go into a question as to whether Clause (b) of Section 69(1) of the Transfer of Property Act was also attracted. None of the parties to the writ application challenged the said sale which took place on 27th November, 1971. It was admittedly for consideration, and the whole amount went to liquidate the dues of the H.V.L., which was payable to the Financial Corporation under the mortgage deed. Since then the petitioner is coming in possession of the property. Under these circumstances, it cannot be held that the said sale was an involuntary one.

Mr. Singh contended that it would be still an involuntary sale. In support of his submission he cited a few decisions. The first case cited was the case of Mohammed Afzal Khan v. Abdul Rahman AIR 1932 PC 235. That was a case where a decree for partition was made on the basis of an award where the matters in difference were referred to arbitration without the intervention of the court. It was argued that in such a case it would be considered to be a private sale, within the meaning of Section 64 of the Code of Civil Procedure, and therefore, void as against the attaching creditor. This argument was not accepted by their Lordships. It was held that “if the party against whom a decree is passed, fails to transfer the property as required by the decree, the transfer may be enforced by proceedings in execution, and this is what actually happened in the present case”. Nobody can dispute the dictum laid down in this case, nor this decision has been disputed by the other side. The next case cited was the case of Quarban Ali v. Ashraf Ali (1882) ILR 4 All 219 (FB). There it has been held that private alienation means a voluntary sale, gift or mortgage in contravention of the attachment order and not the enforced execution of a conveyance or assignment in obedience to a decree of a court qualified to pass it. The other decision cited is Sadayappa v. Ponnama (1885) ILR 8 Mad 554. It has been held therein that where a vesting order is made under the Insolvency Act after attachment and before the decree, the title of the official assignee takes effect and prevents the attaching creditor from obtaining the satisfaction of his decree by sale. The principle of law laid down in these cases are correct and cannot be disputed, and these propositions have not been disputed at the Bar. However, on the other hand, Mr. Rameshwar Prasad II, learned counsel representing the sales tax department, cited a decision in Union of India v. Jardine Henderson Ltd. AIR 1979 SC 972. That case, if I may say so, has no relevancy as the fact of that case itself shows that the transfer taken by M/s. Jardine Henderson Limited was a private sale and the question for decision in that case was the interpretation of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act (11 of 1964), which made provision for application of the Act retrospectively to the pending certificate proceedings. Therefore that case has no bearing in the present case. Some more decisions were cited by Mr.Rameshwar Prasad II, i.e., the cases of Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer AIR 1978 SC 449, Union of India v. Ratanlal Bhawalka AIR 1978 Cal 164 and Tax Recovery Officer v. Hansaben [1982] 135 ITR 572. These decisions are all distinguishable. As the principles laid down in the case cited by Mr. Singh and discussed above, have not been challenged at the Bar, it is not necessary to burden the judgment by discussing and distinguishing these decisions, which were cited by Mr. Rameshwar Prasad II.

The decisions cited by Mr. Singh do not help him. No decision has been brought to our notice where it has been held that a sale held, without intervention of the court, and in accordance with Section 69 of the Transfer of Property Act, will be considered to be an involuntary sale, and not a private sale.

7. In view of the discussions made above, it has; therefore, to be held that the transfer by the Financial Corporation to the petitioner was a private sale, and therefore, hit under the provisions of Section 8 of the P. D. Act and shall be void against the claim enforceable in execution of the certificate dues which have been initiated for realisation of the dues of sales  tax   against  the  H. B. C.  and the H. V. L., and the certificate dues would be a charge upon the property which  is now in the hands of the  petitioner.    The contention  of Mr. Singh,  therefore, fails.
 

8.    The other submission made by Mr. Shreenath Singh is that in  the  facts and circumstances of the case,  the  sales tax authority as also the  certificate officer should not proceed against the property in the hands of the petitioner for realisation of the certificate dues in view of the indemnity  clause given  in  the sale deed of the petitioner.   The  indemnity  clause   has been  quoted in  paragraph 3(e)(vi) of the writ application.    It reads thus :
 (vi) The sale of the assets will be free from all charges, liabilities, encumbrances and claims and the corporation shall keep the purchaser indemnified against the same. Peaceful vacant possession will be given by the corporation at the time of execution of the sale deed. 
 

9.    The learned counsel, therefore, submitted that under such circumstances a direction can be issued by this Court to the sales tax authority  to  realise the certificate dues from the Financial Corporation and not the petitioner,  specially when the Bihar State Financial Corporation is an authority within the meaning 0of Article 12 of the  Constitution of India.     The  learned  counsel relies upon Sukhdev v. Bhagatram AIR 1975 SC 1331, in which it has been held that the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation are "authorities" within Article   12 of the Constitution of India.    The Industrial Finance Corporation has been established under Section 3 of the Industrial Finance Corporation Act, 1948.    On the same analogy it is submitted that the Bihar State Financial Corporation is an  authority  within  Article 12 aforesaid.    It is, therefore, submitted that if the sales tax authority is allowed to proceed against the property in the hands of the petitioner,  then it will be an arbitrary act, and will be considered to be irrational and unreasonable. Mr. Singh in support of his argument cited two decisions of the  Supreme Court. The first decision is Ramana Dayaram Shetty v. International Airport Authority of India ATR 1979 SC  1628.   That is a case where tenders were invited from registered second class hoteliers having at least five years' experience for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay for a period of three years. The International Airport Authority in disregard of the eligibility condition accepted the tender of the fourth respondent. He was lacking in the requisite experience as a second class hotelier for the prescribed period. It was held that the International Airport Authority was not entitled to act arbitrarily in accepting the tender of the fourth respondent, but was found to conform to the standard or norm laid down in the tender notice, and it also denied equality of opportunity to others, similarly situated in the matter of tendering for the contract, inasmuch as such other persons did not apply in pursuance of the tender notice as they were falling short of the said eligibility condition, namely, five years' experience, as a second class hotelier. I may point out, that in the very opening of the judgment, the learned Judge of the Supreme Court pointed out that the questions involved in that case cannot be decided in the abstract. They can be determined only against the background of facts.    The questions posed were :
  

What are the constitutional obligations on the State when it takes action in exercise of its statutory or executive-power ?
 

Is the State entitled to deal with its property in any manner it likes or award a contract to any person it chooses without any constitutional limitations upon it?
 

What are parameters of its statutory or executive power in the matter of awarding a contract or dealing with its property ? 
 

The next case cited was Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir AIR 1980 SC 1992. In that case also in the opening part of the judgment the learned Judge of the Supreme Court has pointed out that the questions raised are of “some importance in the field of constitutional law, but they are not abstract questions which can be divorced from the facts giving rise to them”. The salient facts of that case was that the State passed an order sanctioning 11.85 lakhs blazes in the inaccessible areas to the second respondents for a period of ten years, on the terms and conditions set out in the order. The main ground of attack on the said order was that it was arbitrary, mala fide, and not in public interest and it creates monopoly in favour of the second respondents, and the State “acted arbitrarily in selecting the second respondents for awarding tapping contract, without affording any opportunity to others to compete for obtaining such contract and this action of the State is not based on any rational or relevant principle and is, therefore, violative of Article 14 of the Constitution as also of the rule of administrative law which inhibit arbitrary action by the State”. All the three grounds on which the order was challenged were rejected and the order of the State Government was held to have been passed in pursuance of a particular policy, and therefore, the writ applications were dismissed.

10. Thus, in my view, the above two decisions of the Supreme Court do not help the petitioner in any way. The principle laid down in those decisions do not apply to the facts of the present case. It is true that there was an indemnity clause in the sale deed of the petitioner, and the Financial Corporation has throughout supported the petitioner in the argument, but here the Financial Corporation, which has executed the sale deed with the indemnity clause, is not proceeding with the certificate cases. The certificate-holder is the sales tax authority. It has already been pointed out that before the H. B. C. transferred the property to the H. V. L., notice under Section 7 of the P. D. Act was already served upon the H. B. C, and therefore, the sale by the H. B. C. to the H. V. L. is hit by Section 8 of the P. D. Act and such sale is void against any claim enforceable in execution of the certificate and the amount due under the certificates has been made a charge upon such property to which every other charge created subsequently to the service of the said notice shall remain postponed. It has also been pointed out that when the property was in the hands of the H. V. L., some more certificate cases were filed against the H. V. L., and before the property could be sold to the petitioner by the Financial Corporation, notice under Section 7 of the P. D. Act was served upon the H. V. L. Therefore, the said transfer was also void against the claim enforceable in execution of those certificates against the H. V. L., and the property remained charged for those dues. The sales tax authority, which is the certificate-holder, was not a party to the transfer deed in favour of the petitioner. Under these circumstances, if the law gives the sales tax authority right to proceed against the property in the hands of the petitioner for realisation of the certificate dues filed against the H. B. C. and the H. V. L., can it be said to be an arbitrary act on the part of the sales tax authority ? The answer undoubtedly is, no. The said authority gets right to proceed against the property under the law and in view of Section 8 of the P. D. Act to realise the dues from the property in the hands of the petitioner. For these reasons, it is difficult to accept the aforesaid submissions of Mr. Singh, and accordingly, this submission is also rejected.

11. During the course of arguments, Mr. Singh stated that the petitioner has to pay three lacs of rupees to the Financial Corporation as against the loan taken from the latter, and if the Financial Corporation agrees then the petitioner will have no objection in making payment of the said dues towards the dues under the certificate proceedings and the balance may be paid by the Financial Corporation in view of the indemnity clause in the sale deed of the petitioner.

Mr. Shankar Prasad, the learned counsel appearing on behalf of the Financial Corporation, stated that he would not agree to this proposal, as the petitioner has not mentioned in the writ application that the Financial Corporation was approached for indemnifying the petitioner and that any decision has been taken by the Board of Directors refusing to indemnify the petitioner. As it has already been held above that the property in the hands of the petitioner is liable for the certificate dues, and the sale deed of the petitioner shows that the said property was sold free from all encumbrances with a further clause to indemnify the petitioner against any claim, which the petitioner has to pay for the said property, it would be appropriate, reasonable and proper to consider the said request of the petitioner by the Board of Directors of the Financial Corporation in order to avoid any further future and protracted litigation. It is expected that it should not act arbitrarily and in an unreasonable manner. As the Financial Corporation is not proceeding against the petitioner for realisation of the certificate dues, the prayer of the petitioner to issue a direction to the sales tax authority to proceed against the Financial Corporation for realisation of the certificate dues cannot be granted specially when in view of Section 8 of the P. D. Act, the sales tax authority has a right to realise the certificate dues from the property in the hands of the petitioner.

12. An argument was advanced by Mr. Shankar Prasad, the learned counsel for the Financial Corporation, that Section 29(4) of the Act will prevail over Section 8 of the P. D. Act in view of Section 46B of the Act. This argument has got no substance. Section 46B says that the provision of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, “but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern”. I fail to appreciate as to how Section 46B takes away the effect of Section 8 of the P. D. Act. Section 46B of the Act expressly says that except as indicated in the first part, i.e., inconsistency contained in any other law or in the memorandum or article of association, or in any other instrument having effect by virtue of any law other than this Act, the provision of this Act shall be in addition to and not in derogation of, any other law for the time being applicable to an industrial concern. No provision of the Act has been pointed out which is inconsistent with Section 8 of the P. D. Act. Therefore, in my view, the effect of Section 8 of the P. D. Act is not taken away by Section 46B of the Act and it should be read as in addition to the provisions of the Act. This contention of Mr. Shankar Prasad has got no substance.

13. In the result, the writ application has no merit and is, accordingly, dismissed, but in the circumstances of the case, there will be no order as to costs.

Sharma, J.

I agree.

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