Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records for the records of the 1st respondent pertaining to the Auction Sale Notice bearing Na.A.2081/2010 A2 dated 14.02.2012 published on 18.02.2012 quash the same and consequently direct the 1st respondent to release the property of the petitioner from attachment.
The challenge in these writ petitions is to the auction notice issued by the first respondent, dated 14.02.2012 bringing the property in question to sale by auction.
2.According to the petitioners, the petitioner in W.P.(MD)No.3970 of 2011 had purchased the properties in Survey Nos.1744/A18, A24, A10, A3, A19 under registered sale deed dated 29.03.2001 bearing Document No.399/2001. It is stated that he is in possession and enjoyment of the properties in question right from the date of the said purchase. These properties were shown as item Nos.3,4,5 and 6 in the auction notice issued by the first respondent. It is further contended that the first respondent has no right to bring the properties purchased by the petitioner for the alleged guarantee given by the third respondent for the dues of the second respondent towards sales tax arrears.
3.In W.P.(MD)No.3971 of 2011, the father of the petitioner has purchased the properties in Survey Nos.1384 and 1385 under sale deed dated 30.01.1995 bearing Document No.28.of 1995 on the file of the Vellaiyanai Sub Registrar Office and after the death of his father on 25.09.2011, the petitioner is in possession and enjoyment of the property as owner of the property. Therefore, the petitioner would claim that the action of the first respondent in bringing the property for auction to recover the alleged sales tax dues of M.R.Vadivel, the second respondent in both the writ petitions is illegal and they sought to quash the auction notice by issue of a Writ of Certiorari.
4.The first respondent has filed a counter affidavit inter alia contending that the original owner P.V.Kandhaiya, had given guarantee for payment of sales tax dues by the second respondent namely, M.R.Vadivel and the guarantee was executed on 03.05.2000. At the time of execution of the guarantee, the third respondent namely, P.V.Kandhaiya also handed over the xerox copy of a partition deed entered into between him and his brothers. Therefore, according to the department, they are entitled to proceed against the properties of P.V.Kandhaiya as a guarantor for payment of tax due by the second respondent.
5.Learned Additional Government Pleader appearing for the first respondent produced the document in Form XIX-B under sub-rule 15-A of Rule
24.
6.It is seen from the said document that the said P.V.Kandhaiya had personally undertaken to bind himself to pay a sum of Rs.50,000/- to the Government of Tamil Nadu under Section 21 of the Tamil Nadu General Sales Tax Act, 1959, if the security amount due under Section 21 is not required, the bond shall be void and of no effect.
7.Rule 24 (15-A) provides for forms of security that could be taken by the Department. The Rule reads as follows.
24.(15-A) The security shall be in any of the following forms namely.
(i)Immovable property;
(ii)Deposit in Government Treasury by cash;
(iii)Government promissory notes duly pledged in the name of the registering authority;
(iv)Post Office Savings Bank Deposits, duly pledged in the name of the registering authority;
(v)Deposits made with the state Bank of India or any subsidiary bank as defined in clause (K) of
<act id=eLGwPokB_szha0nW88_m section=2>section 2 </act>of State Bank of India (subsidiary Banks) Act, 1959 (Central Act XXXVIII of 1959) or any corresponding new Bank as defined in clause (d) of
<act id=eLGwPokB_szha0nW88_m section=2>section 2 </act>of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (Central Act V of 1970)or any non- nationalised scheduled Bank operating in the State of Tamil Nadu or the Tamil Nadu State Co-operative Banks and Central Co-operative Banks approved by the Registrar of Co-operative Societies for this purpose.
(vi)Loans, bonds other than price bonds or debentures issued by Quasi-government organizations or other institutions repayment of which are guaranteed by the Government and National Defence Certificates duly pledged in the name of the registering authority.
Explanation I.-Where the security is furnished in the form of immovable property, the person furnishing it may in any town to which sub- section (f) of
section 58 of the Transfer of property Act 1882 (Central Act IV of 1882) is applicable, mortgage such property to the Government by deposit of title deeds.In other cases the security shall be by means of registered mortgage of the immovable property.(Emphasis Supplied). The security bond shall be in Form XIX-B and shall be filed in duplicate the original of which should bear appropriate adhesive non-judicial stamps or Court fee stamps.
8. It is clear from the Explanation to the above Rule that when security is furnished in the form of immovable property the person furnishing it has to create a mortgage of such property either by depositing the title deeds or by way of a registered mortgage deed as the case may be.
9.In view of the above, in order to enable the first respondent to bring the properties of P.V.Kandaiah for recovery of the dues of the second respondent M.R.Vadivel, it should be shown that there was a valid mortgage either by deposit of title deeds or by registered instrument in existence. Unless mortgage is shown to be existence, the Department cannot bring the properties for sale. The security bond under Form XIX-B cannot fulfill the requirement of Explanation to Rule 24(15-A). Therefore, I am of the considered opinion that in the absence of valid mortgage by P.V.Kandhaiya, the Department cannot bring the properties of P.V.Kandhaiya which were sold to the third parties, for sale invoking the provisions of Revenue Recovery Act.
10.In the result, the writ petitions are allowed and the auction notice dated 14.02.2012 issued by the first respondent is quashed. Rule nisi is made absolute. It is made clear that the first respondent cannot proceed against the properties which have been purchased by the petitioners from the third respondent P.V.Kandhiah and any communication sent by the first respondent to the Sub Registrar's Office, Velliyanur, Karur District will also stand quashed. No costs. Consequently, M.P.(MD)Nos.1 and 2 of 2012 are closed.
To The Assistant Commissioner, Commercial Tax Office, Karur West, Karur..