9911796707
TMI Blog2024 (10) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was nothing wrong with the registered gift deed dated 6 May 2006 HELD THAT:- The fact that the gift deed was executed soon after the original order was made declaring the Petitioner s brother a defaulter is not a circumstance that can be lightly ignored. The defaulting brother has purported to transfer 50% of his share to the Petitioner. This is a case where an apparent attempt was made by the defaulting brother and the present Petitioner to obstruct the recovery of legitimate dues. The Petitioner's conduct has not been above board. The vital document, the order dated 30 November 2005, was not enclosed along with the Petition. In fact, it was suppressed. This document was extremely vital to test the Petitioner s case, yet it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mehul Rathod,. For the Petitioner : Mr Jitendra Mishra, with Sangeeta Yadav, x. PC:- 1. Heard learned Counsel for the parties. 2. This is an unfortunate case where the Petitioner seeks the assistance of the Writ Court to perpetuate what is prima facie a fraud. 3. In our judgment, the issue raised in this Petition is entirely covered by the decision of the Coordinate Bench in Chhaya Atul Pandya Vs Union of India 2015 (323) E.L.T. 521 (Bom.). 4. The Petitioner s brother was declared a defaulter regarding payment of the customs dues by order in original dated 30 November 2005. Soon after receipt of this order, the defaulting brother purported to gift his share in Flat No. A-5 in Sagar Sanjog Society Cooperative Housing Society Ltd (said flat) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and the present Petitioner to obstruct the recovery of legitimate dues. 8. The question is whether such a Petitioner, who is nothing but prima facie a proxy for the defaulting brother, should be granted any assistance by a Writ Court in exercising its equitable and extraordinary jurisdiction under Article 226 of the Constitution of India. 9. In Chhaya Atul Pandya (supra) the Division Bench comprising Justice S. C. Dharmadhikari Justice G. S. Kulkarni, JJ were confronted with a similar fact situation. The argument was that the order of attachment of immovable property was not to attach the defaulter's property but that of a third party. This means that the property of a third party was attached to the order. In the said case, the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction under Article 226 of the Constitution. It is well settled that the equitable and extraordinary jurisdiction of this Court is not to be exercised merely upon the Petitioner making out some legal point. This jurisdiction is essentially discretionary, and the Petitioner s conduct is a factor for considering the exercise of discretion. 15. In this case, Dr Amit Singal, the Deputy Commissioner of Customs, Tax Recovery Cell (Import) has filed an Affidavit. In para 19 of this Affidavit, the affiant has stated the following:- 19. I say that a letter dated 02-07-2013 written to Shri Naresh J. Sukhwani requesting to cooperate with the officers of the customs department and the Valuation Officer of the Income Tax Department who will visit the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of request and appeasement, she allowed the officers to inspect the flat. It was found that the wall separating the flat No. A-5 and A-6 has been removed and the two flats were joined from inside. However, still it was possible to ascertain the demarcation of the flat No. A-5 and A-6. The Valuation officer gave the valuation report dated 08-08-2013 for the complete flat No. A-5 as Rs. 1,56,79,000/-. Hence, the value of 50% of the flat No. A-5 comes to Rs. 78,39,500/-[Rs. Seventy Eight Lakh Thirty Nine Thousand Five Hundred Only]. 16. The Affidavit also refers to the registered gift deed and all clauses there stating that from the date of execution of the gift deed, the donee, i.e., Petitioner herein, shall pay other legitimate government a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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