9911796707
TMI Blog1990 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the impugned order under section 269UD(1), the property shall vest in the Central Government free from all encumbrances from the date of the order. The first respondent also directed that under the provisions of section 269UE(2) of the Act the transferor or any other person who may be in possession of the property shall surrender or deliver possession of the said property to the first respondent or any other person who is authorised by them within 15 days of the service of the order free from all encumbrance. According to the writ petitioner, the above provisions are unconstitutional and as such, the impugned order is totally illegal. He has also filed W. M. P. No. 1920 of 1989 for granting interim stay of operation of the impugned order of the first respondent and restraining the first respondent from taking further steps in pursuance of the said order. The writ petitioner obtained interim stay on February 2, 1989. To vacate the said interim stay, the third respondent filed W. M. P. No. 5041 of 1989. It is averred in the affidavit filed in support of the petition for vacating the grant of stay that the agreement was entered into by him with the first respondent on October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent in the writ petition. He would state that the interim stay was granted by this court after appreciation of the facts and the interim stay ought to be made absolute. Further, the third respondent has deliberately omitted to mention and/or acknowledge the receipt of a further sum of Rs. 2,75,000 on various dates mentioned in paragraph 5 of the writ petition. He was ready and willing to pay the amount of the first instalment of Rs. 4,50,000 on January 15, 1989, and he has already paid Rs. 2,65,000 on various dates. But even before the first instalment became due and payable, he was paying the abovesaid sum in instalments at the demand of the third respondent. The impugned order dated January 9, 1989, was passed in the meantime. The third respondent had assured the writ petitioner that he would take steps to have the order of the first respondent set aside and secure the permission of the first respondent for the sale in terms of the agreement and that it was only on the basis of the said assurance, the writ petitioner effected a payment of Rs. 15,000 on January 15, 1989, and another sum of Rs. 10,000 on January 19, 1989. The third respondent has purposely suppressed all these fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs, after deducting the advance paid by the buyer to the seller, namely, Rs. 7.25 lakhs, in the manner set out in the order and also directed the vendor to hand over possession to the Department and also hand over the discharged mortgage deed. While so doing, the Bench had directed the Department not to auction or sell the property during the pendency of the writ petitions. It was further observed that in case the petitioners in the writ petitions succeed, they should pay a sum of Rs. 10.75 lakhs to the Department and on the contrary, if the writ petitions fail, a sum of Rs. 7.25 lakhs shall be paid by the Department to the writ petitioners. Learned counsel for the third respondent is willing to sell the property to the Income-tax Department if the writ petitioner is not willing to act as per the terms of the agreement and purchase the property, and if the writ petitioner wants to prosecute the writ petition, he should be directed to deposit the balance of the sale consideration or otherwise, the stay should be vacated so as to enable him to get the entire sale price from the Income-tax Department by virtue of the impugned order. Learned counsel appearing for the writ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment to pay any portion of the sale consideration, unless and until the proceedings in the court are disposed of. If any loss is occasioned because of the conduct of the fourth respondent, it is for the appellants to take such proceedings as are available to them in law against him for indulging in litigation. Public funds cannot be taken away by an owner of property when the agreement-holder resorts to litigation of this nature. It is to be noted that the vendors in that appeal were the vendors while the fourth respondent was the purchaser. It was ultimately held ( at page 272 of 185 ITR ) : " Hence, in matters of this nature, whenever a stay order is obtained at the instance of any of the parties to the agreement of sale, and if there is any interdiction by the court preventing the authorities from pursuing further steps consequent to the issue of an order under section 269UD(1), then there would be no directive from the court to the Income-tax Department to pay the sale consideration during the pendency of proceedings in court. " Consequently, the Bench dismissed the appeal. It is clear from the ratio laid down in the abovesaid decision that the remedy of the third respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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