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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 ..... e against him and in the absence of any demand made against him, his property could not be attached. Incidentally, it is contended that the respondent has no power to attach or sell the properties of the person, who is not liable to pay tax. It is further stand of the petitioner that the property sought to be attached by the respondent was not given as security and that apart, the property sought to be auctioned by the respondent by means of the impugned order dated February 7, 2003 was not in security as on date or on the date of commencement of the impugned proceedings and therefore, prays for allowing the writ petition to advance the cause of justice. The plea of the respondent is that one Thiru C.V. Sanjeev Kumar, proprietor of Tvl. Sri Annapoorna Farm Equipment, engaged in the manufacture of grain crushing machine at Singanallur, Coimbatore, who was an assessee/dealer was in arrears of tax amounting to Rs. 24,10,859 and at the time of applying for registration by the said C.V. Sanjeev Kumar, the writ petitioner (the father of dealer Sanjeev Kumar), had tendered his immovable properties of five acres of agricultural land as security in form XIX-B as prescribed under the Tamil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated September 6, 1991 and both the form D and also the form XIX-B documents of the year 1970 said to have been given to the Commercial Tax Department mentioned the same and there was no document available with the Commercial Tax Department to relate the petitioner in any manner and therefore there was no valid mortgage created by the petitioner in accordance with law and therefore prays for allowing the writ petition. The learned counsel for the petitioner cites the decision of the honourable Supreme Court in R. Janakiraman v. State represented by Inspector of Police, CBI, SPE, Madras [2006] 1 SCC 697 at 698 wherein it is held as follows: "Under the Evidence Act, 1872, section 92 is supplementary to section 91 and corollary to the rule contained in section 91. The rule contained in section 92 will apply only to the parties to the instrument or their successors-in-interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, section 91 may apply to strangers also. The bar under section 92 would apply when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments must be to a creditor or his agent. The claimant was neither a creditor nor was he the agent of the financiers at the time of the delivery of the documents of title. Since the appellant is neither a creditor nor was he the agent of the creditors at the time of the deposit of the title deeds by the insolvements, such deposit will not amount to mortgage as defined under section 58(f) of the Transfer of Property Act. Even though, there is memorandum of agreement for deposit of title deeds, that will not clothe the claimant with the right to enforce the mortgage for recovery of moneys subsequently lent by others to the insolvent." In short, the substance of the contentions of the learned counsel for the petitioner is that insofar as the petitioner is concerned, the respondent is not a creditor and therefore, the purported mortgage by deposit of title deeds created by means of deliverance of documents of title to immovable property, will not create any right on the part of the respondent to enforce the said mortgage by any means in the eye of law. Besides the above, the learned counsel for the petitioner brings to the notice of this court that in security bond for collection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y deposit of title deeds and as per section 58(f) of the Transfer of Property Act, the same can be created in certain specified town, but in the instant case, the property is situated at Kallapalayam Village which is not a notified place for creating an equitable mortgage and therefore, there cannot be any valid equitable mortgage in the eye of law. The petitioner takes a plea that the respondent has obtained his signatures in blank forms. It is the contention of the learned counsel for the respondent that the writ petitioner being the father of dealer Sanjeev Kumar, is an assessee in another circle and he is having his own independent business and when the son, viz., Sanjeev Kumar has fallen of arrears of sales tax then the same can be collected from the petitioner who is none else the father of the mortgagor Sanjeev Kumar and that no property is personally owned by the father and indeed, security bond form 19B in the instant case was executed by the petitioner at Singanallur in Coimbatore and in fact, a lien has been created and as per rule 24(15A) of the Tamil Nadu General Sales Tax Rules, the security shall be in any of the following forms, viz., (1) immovable property, (2) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is on the property of the dealer. Hence, the tax assessed under the Sales Tax Act will have priority over all debts including a mortgage as per decision Punjab National Bank Asset Recovery Branch v. Commercial Tax Officer II [2009] 25 VST 167 (Mad); [2006] 3 MLJ 919 (Mad). In Chinnamma v. State of Tamil Nadu represented by a Collector, Kanyakumari District [2001] MLJ Suppl 192 (Mad), it is held that "if any tax is payable under the Act, a charge will be created and as such the transfer of such property would be void". Continuing further, as per section 24(2b) of the TNGST Act, 1959, a dealer in default and payment of recovery of tax, the proceedings before magistrate is not liable to be quashed under section 482 of Cr.P.C., as per decision in Tamilselvan v. Deputy Commercial Tax Officer, Dharmapuri [2004] MLJ Cri. 17 MAD. It is well-settled principle that the proceeding under article 226 of the Constitution of India under writ jurisdiction is a summary proceedings and in general a disputed question of fact or mixed question of fact and law cannot be investigated as per decision in Union of India v. Ghaus Mohammed AIR 1961 SC 1526. On a careful consideration of respective con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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