9911796707
TMI Blog1995 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... settling the terms of sale proclamation of the property situate at No. 15, Kandappa Pillai Street, Madras-31, since by then the defaulter had died. The petitioner appears to have given a letter agreeing to have the property bearing door No. 15, Kandappa Pillai Street, Madras-31, sold in public auction. On March 18, 1985, the sale notice in respect of that property has been issued along with a proclamation of sale of even date. On April 25, 1985, the petitioner appears to have presented a petition to the Commissioner of Income-tax (Tax Recovery), praying for postponement of the auction sale. The sale was fixed originally to be held on April 26, 1985, and it was proceeded with and conducted on that day, in which the third respondent, who got subsequently impleaded as a party respondent, was the successful bidder for a sum of Rs. 70,500. There is no controversy over the position that the successful bidder has remitted the amounts due in respect of the purchase made by him in accordance with law. While that be the position, on May 9, 1985, the petitioner presented a petition under rule 61 of the Rules in the Second Schedule to the Act praying for setting aside the sale, but without com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature obliging the defaulter to pay the arrears as per the tax recovery certificate is meant to avoid frivolous and routine applications being mechanically filed for setting aside a sale and such stipulations cannot be considered to be either arbitrary or unreasonable. For all the reasons stated, I do not see any merit in W. P. No. 7089 of 1985 and the same shall stand dismissed. So far as W. P. No. 7088 of 1985 is concerned, learned counsel for the petitioner vehemently contended that inasmuch as the writ petitions have been filed in this court, challenging the order passed rejecting the application for setting aside the sale and stay of further proceedings have been obtained and inasmuch as the sale certificate has not been issued in favour of the successful bidder notwithstanding his remittance of the amount due from him pursuant to the acceptance of his bid and confirmation of the sale, the entire proceedings pertaining to the sale must be considered to be in a fluid state and has not reached finality and inasmuch as the petitioner has paid the entire arrears due as per the tax recovery certificate on July 26, 1992, the Tax Recovery Officer must be directed to consider the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious opportunities at every point of time to the defaulter to salvage his position placed reliance upon the decision of the learned single judge of the Karnataka High Court reported in M. R. Anthony Swamy v. CIT [1982] 135 ITR 424. In Varadarajan v. Muthu Venkatapathi Reddy, AIR 1953 Mad 587, a Division Bench of this court held that the restoration of a petition under Order XXI, rule 90, dismissed for default would make the confirmation of sale already made pursuant to the order of dismissal ineffective and that such an order of confirmation may be treated as automatically vacated or even may be considered to be null and void. No exception could be taken to this proposition of law. If the sale has been confirmed after the dismissal of an application under Order XXI, rule 90, for default the restoration of the application so dismissed sets at naught the proceedings taken on the basis of the order of dismissal. The decision reported in S. V. Ramalingam v. K. E. Rajagopalan [1975] 2 MLJ 494 is one rendered in the context of an application made under Order XXXIV, rule 5 of the Civil Procedure Code, 1908, before the High Court in a pending appeal proceedings against the challenge ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unless as a condition for such filing pre-deposit of the arrears as per the certificate issued by the Tax Recovery Officer is deposited. In this case, it is an indisputable fact that no amount whatsoever has been paid leave alone the payment of the arrears as per the certificate from the materials made available before this court, it is seen that the auction sale was initiated to recover a sum of Rs. 5 lakhs odd as on that date. Consequently, the rejection of the application as per the statutory mandate by the first respondent on June 13, 1985, could not be said to be illegal nor could the order of confirmation which followed as an inevitable consequence on June 17, 1985, be said to be contrary to law. The question for consideration in the light of the submissions made on behalf of the petitioner is as to whether the filing of the writ petition and its pendency could be said to have rendered the sale proceedings remain in a fluid state without attaining finality or that this court can direct fresh consideration of the petition perfunctorily filed under rule 61 without complying with the essential prerequisite for setting aside the sale. Unlike the case dealt with by the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to countenance the claim made on behalf of the petitioner on some abstract considerations of equity alone ignoring the equity that has to be taken into account in favour of the third respondent also, whose money has been locked up with the Department all along for no fault of his. The principles laid down by the learned judges, in the decisions reported in Varadarajan v. Muthu Venkatapathi Reddy, AIR 1953 Mad 587 and S. V. Ramalingam v. K. E. Rajagopalan [1975] 2 MLJ 494, in my view will have no application to the situation of the particular rules with which we are concerned. As pointed out earlier, it may not be proper at this stage to direct the restoration of an application rejected as early as on June 13, 1985, for valid and justifying reasons. Even that apart, I am of the view that the petitioner may not be entitled to any indulgence in the hands of this court in exercise of its jurisdiction under article 226 of the Constitution of India. As rightly pointed out by learned senior counsel for the department, even after the petition alleging irregularities and also the request for postponement of the sale in April, 1985, and the rejection of the petition on May 9, 1985, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
