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TMI Blog2010 (3) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... person and the same may without prejudice to any other mode of collection be recovered,—(a) as land revenue, or (b) on application to any magistrate, by such magistrate as if it were a fine imposed by him, etc.," this court is of the considered view that the disputed question of fact as to the creation of equitable mortgage and in the absence of demand being made against the petitioner his property would not be attached, etc., cannot be gone into by this court or the same cannot be completely and comprehensively decided by this court on the basis of available materials on record in the present writ petition and the disputes/controversies can be agitated by necessary party before a civil forum by means of filing of a civil suit - writ petition fails. - W.P. No. 7766 of 2003 - - - Dated:- 11-3-2010 - VENUGOPAL M., J. ORDER:- M. VENUGOPAL J. The petitioner has filed this writ petition, praying for issuance of a writ of certiorari, in calling for the records of the distraint order of the respondent in Na.Ka.No. 2328/2002/A3 dated February 7, 2003 attaching and proposing to auction the property of the petitioner in survey No. 60 in Kallapalayam Village, Palladam Taluk, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the property concerned came forward by producing a xerox copy of the title of his property in survey No. 60, an agricultural land measuring an extent of five acres in Kallapalayam Village and undertook to pay the Government any tax or fee or any other amount and he executed the security bond in form XIX-B, a lien was created against the particular property which was tendered as security. It is noted that as per sub-section (2) of section 24 of the Tamil Nadu General Sales Tax Act, 1959 any tax assessed or has become payable or any other amount due under the Act from the dealer or person shall have priority over any other claim over the said property of the said dealer or person and the same could be recovered as land revenue and by virtue of the specific provisions contained in the Act, the assessing officer is empowered to collect the arrears by attaching the property given as security by invoking the provisions of the Revenue Recovery Act. Countering the stand taken by the respondent, the learned counsel for the petitioner contends that no original document has been produced before this court and it is mandatory that original files to be produced before this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon. and urges before this court that the petitioner is not precluded from proving a fact contradicting or varying the term of contract and as a matter of fact, section 91 of the Indian Evidence Act applies to the petitioner being a stranger. He also relies on the decision in G.R. Krishna v. S.K. Venkatachalam [1990] 2 MLJ 260 at 261, wherein it is held thus: As per section 58(f) of the Transfer of Property Act, 1882 when a person delivers to the creditor or his agent documents of title to immovable property with intent to create a security thereof, that transaction is a mortgage by deposit of title deeds. Therefore, there must be delivery of documents of title. Ordinarily, any deed that vests title in a person is a documents of title. Obviously that deed is original deed. Therefore, when the section says documents of title, it must be understood to mean original documents of title and not copies of original documents of title. It is the contention of the learned counsel for the petitioner that delivery of document of title to a person who is neither creditor nor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 has been affixed and therefore, one is not in a position to know whether the said court of fee of Rs. 10 has been affixed on the column where witnesses have been mentioned. However, this court is of the view, the absence of the said column for witnesses is not a fatal or vitiating factor affecting the merits of the case. Contending that the right to property has been guaranteed under article 300 of the Constitution of India, the learned counsel for the petitioner submits that such a guaranteed right cannot be taken away by any one much less the reason except due process of law and further draws the attention of this court to form D application for registration as dealer in respect of the petitioner s son C.V. Sanjeev Kumar in column 11A(d) at inner page 3 in the date of purchase/coming into possession was mentioned as September 7, 1970 and the mode of acquisition was mentioned as self-acquired document No. 1453/70 and the value of the property was mentioned as Rs. 5,00,000 and the location of the property was mentioned as Kallapalyam Village and extent was mentioned as five acres and as a matter of fact, the xerox copy of the sale deed dated January 18, 1950 stands in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricultural land and after commencement of business and other manufacture by means of application, he has been paying tax and he has one brother and his father personally doing his agriculture. The learned counsel for the respondent projects an argument that the issue as to whether, the assessee, viz., the petitioner and his son C.V. Sanjeev Kumar, in his propriety business Sri Annapoorna Farm Equipments has deposited the xerox copy of the sale deed dated January 18, 1950 standing in the name of his mother with the respondent with an intention to create an equitable mortgage or not? is certainly a disputed question of law which cannot be traversed in the present writ petition and inasmuch as the parties to the writ petition has taken a divergent view in this regard, the dispute/controversy, can only be adjudicated by means of parties letting in oral and documentary evidence before a competent civil forum by means of filing a civil suit as held in the decision in Tamil Nadu Taxation Special Tribunal in the decision N. Padma Coffee Works v. Commercial Tax Officer, Trichy [1999] 114 STC 494 which was later upheld by a Division Bench of this court and this aspect of the matter was ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from him under this Act, shall, subject to the claim of the Government in respect of land revenue and the claim of the Land Development Bank in regard to the property mortgaged to it under section 28(2) of the Tamil Nadu Cooperative Land Development Banks Act, 1934 (Tamil Nadu Act 10 of 1934), have priority over all the claims against the property of the said dealer or person and the same may without prejudice to any other mode of collection be recovered, (a) as land revenue, or (b) on application to any magistrate, by such magistrate as if it were a fine imposed by him, etc., this court is of the considered view that the disputed question of fact as to the creation of equitable mortgage and in the absence of demand being made against the petitioner his property would not be attached, etc., cannot be gone into by this court or the same cannot be completely and comprehensively decided by this court on the basis of available materials on record in the present writ petition and the disputes/controversies can be agitated by necessary party before a civil forum by means of filing of a civil suit raising all factual and legal pleas and since section 24(2) of the Tamil Nadu General Sales ..... 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