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TMI Blog2009 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent under a registered sale deed dated May 29, 2002, under a registered document No. 2194 of 2002 in the office of the Sub-registrar, Udumalpet, for a sale consideration of Rs. 4,50,000. According to the appellant, before purchasing the property, he obtained an encumbrance certificate for the period from January 1, 1971 to June 9, 2002 which revealed only a mortgage and redemption dated May 23, 2002 in favour of Udumalpet Co-operative House Ltd., and except that no other encumbrance was revealed. While so, the appellant received a notice dated October 8, 2002 from the first respondent informing him that the second respondent was carrying on the business on proprietorship basis in the name and style of M/s. Kumaran Traders and he is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tax Officer, Trichy [1999] 114 STC 494 (TNTST), giving liberty to the petitioner to agitate all the issues before the appropriate civil court. Being aggrieved by that, the above writ appeal has been filed. Heard both. The learned counsel for the appellant submitted that the decision in N. Padma Coffee Works v. Commercial Tax Officer, Trichy [1999] 114 STC 494 (TNTST), which has been upheld by the Division Bench judgment of this court, is not applicable to the facts of the present case because inasmuch as the third respondent who is vendor was not an assessee in default at the time when the property was sold to the appellant. The learned counsel submits that it was the second respondent who was the assessee on the file of the first resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t could be inferred that an equitable mortgage has been created by the third respondent, who is the wife of the second respondent. Once equitable mortgage is created then automatically a charge is created over the same as per the provisions of section 24 of the TNGST Act and only to enforce such a charge, the demand order was passed. If the petitioner claims to be a bona fide purchaser for valuable consideration without notice of any charge on the property, it is for him to establish the same in a suit and such a disputed question of fact cannot be gone into in a writ petition. Rebutting the contention of the learned counsel for the respondents, the learned counsel for the appellant submitted that when admittedly the original title deed pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Pioneer Spinners Private Ltd. reported in AIR 1968 Mad 223, wherein the Full Bench has held as under: "A mortgage by deposit of title deeds does not require any writing in law. Besides the deeds and the deposit, what is required is an intention that the deeds shall be security for the debt. The existence of the intention is a matter for inference from facts. The existence of the intention may be established by written documents alone, or coupled with oral evidence, or oral evidence only. In a particular case, the circumstances may warrant the inference of a deposit for security from the very fact of deposit. The question whether oral evidence is admissible to explain or establish a deposit of title deeds, would depend on, whether the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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