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TMI Blog2006 (11) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... r. While that being so, on 24.06.1993 the said assessee sold the property in favour of her son in law, Jayaseelan. Thereafter, when proceedings were initiated to recover the sales tax, under the ground that statutory charge has been created over the property pursuant to the provisions under section 24(1) and (2) of the Tamil Nadu General Sales Tax Act, the assessee, who has sold the property to her son in law on 24.06.1993 filed a suit in O.S. No.2553 of 1994 challenging the action taken against the property of the assessee, which was sold in favour of the son in law on 24.06.1993. When the suit was pending before the Court, Jayaseelan, the son in law, sold the property in favour of the petitioners. Subsequently, the suit also came to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and also sections 100 of the Transfer of Property Act, has held as follows : 23. ....... While sub-section(1) of Section 24 creates a 'charge' on the properties of a defaulter to the extent of his dues, sub-section (2) states that the dues will have priority over all other claims against those properties, except land revenue and claims of Land Development Bank in regard to property mortgaged to it. 24. The meaning of the term charge on the property is to be found in Section 100 of the Transfer of Property Act, in which it has been equated to a 'simple mortgage', and it has also been laid down therein that, in the absence of a specific provision in any law, no charge shall be enforced against any property in the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide whether a transaction was genuine or bona fide or mala fide, all facts relating to the conduct of the parties to the transaction have to be weighed as a whole. (emphasis supplied) 26. The plaintiffs in this case have not disputed the liability of their vendors to pay the sales tax, even at the time of the sales, but claim protection under the exception clause, for which the parameters of Section 3 of the Transfer of Property Act 1882 have to be applied. Every purchaser from the assessee is naturally interested to protect the property and will claim to be a bonafide purchaser. For the sake of their claim, the Court cannot approve the transaction as a bonafide sale. 27. Under Section 101 of the Evidence Act, 1872 whoever desires any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are primary and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of auction or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 31. If in the light of the provisions contained in Order 6 Rule 2 (1) of C.P.C. the averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and mere affidavit and counter affidavit are not sufficient to decide the issue. Hence, I am of the view that the Full Bench decision of this Court in the case of B.Suresh Chand v. State of Tamil Nadu, 2006(4) CTC 805, referred to supra, squarely covers the issue on hand. As already stated, that case also arises out of a common law proceedings by way of a suit and a letters patent appeal. The Division Bench decision in the case of D.Senthil Kumar v. CTO, (2006) 3 MLJ 1019 was rendered in circumstances where the property of the defaulting assessee has been brought to sale in a debt recovery proceedings for the loan obtained from the bank, when subsequent to the auction sale, the respondents sales tax authorities initiated proceedings. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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