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TMI Blog2020 (5) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale deed - It is also seen from both the sale deeds executed between the petitioner's vendor and the petitioner, that the vendor has given an undertaking that there is no encumbrance on the properties in question and if any encumbrance arises at a later stage, he would made good the loss on his own. Reliance can be placed in the case of MRS. MEENAKSHI. J. GANESH KUMAR VERSUS DEPUTY COMMERCIAL TAX OFFICER, SRIVILLIPUTHUR AND ANOTHER [ 2010 (12) TMI 1094 - MADRAS HIGH COURT] . The said judgment has been passed under similar circumstances. In that case, the petitioner therein contended that he was the bona fide purchaser, since he purchased the property only after getting encumbrance certificate from the Sub-Registrar, Srivilliputhur and that when the Department had not attached the property prior to purchase of the same by the petitioner therein, it was not open to the Department to issue the notice impugned therein. Petition dismissed. - W.P.No.3932 of 2009 and M.P.Nos.2 and 3 of 2009 - - - Dated:- 26-5-2020 - HONOURABLE MR. JUSTICE R. MAHADEVAN For Petitioner: Mr. N. Inbarajan for Mr. P. Seshadri For Respondents: Mr. M. Hariharan, Addl. Govt. Pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wrong sub-divisions and such an exercise on the part of the second respondent is ex facie arbitrary and illegal. 2. With the above background, this writ petition has been filed by the petitioner seeking to set aside the impugned notice issued by the second respondent. 3. The learned counsel for the petitioner has submitted that the impugned notice seriously affects the petitioner's right to property guaranteed under Article 300A of the Constitution of India in as much as it also indicates that the second respondent is contemplating action against the petitioner 's property without notice to the petitioner under the Revenue Recovery Act and to attach and to proceed by way of auction sale of the petitioner's property in respect of a non-existing liability in so far as the petitioner is concerned. It is specifically submitted that even assuming that any amount was due, even in the absence of a specific charge on the subject properties from the erstwhile owner, still the recourse open to the second respondent is to proceed only against the third respondent by treating the sale consideration already received by the third respondent from the petitioner or on other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded on 30.05.2007 and 19.09.2007. The original demands were raised as early as on 19.03.2000 for the year 1995-96, in respect of the defaulter, but the petitioner had purchased the immovable properties from the defaulter, after accrual of arrears and after creating charges by the Department. Hence, the sale itself is void. It is stated that the petitioner ought to have taken reasonable care and sufficient steps by approaching the Commercial Taxes Department in order to ascertain whether there were any encumbrances already created in respect of the properties in question, but he had not done so. Without doing that, the petitioner is now diverting the issue, even after making invalid purchases from the defaulter. It is finally stated that the petitioner had not approached the Department regarding the requirement of any details either in person or in writing as regards existence of any charge on the properties and that only after filing of this writ petition, the Department came to know that the petitioner had purchased the properties which were already attached by the Department for the legitimate Government dues. 5. Reiterating the averments made in the counter affidavit filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der similar circumstances. In that case, the petitioner therein contended that he was the bona fide purchaser, since he purchased the property only after getting encumbrance certificate from the Sub-Registrar, Srivilliputhur and that when the Department had not attached the property prior to purchase of the same by the petitioner therein, it was not open to the Department to issue the notice impugned therein. But, this Court has observed that it cannot treat the petitioner therein as a bona fide purchaser as he had failed to ascertain the details of arrears payable by his vendor before execution of the sale deed. Further, this Court has referred to a Division Bench judgment of this Court in the case of R.Balasubramanian v. Additional Deputy Commercial Tax Officer III, Tuticorin in W.A. (MD) No.130 of 2005 dated 22.08.2005, wherein it has been held that the claim of the appellant therein that he is a bona fide purchaser on which automatic charge is created, cannot be adjudicated in a writ petition under Article 226 of the Constitution of India as the property remedy for the said person is only to approach the Civil Court to establish his right. 9. In the present case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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