The petitioner Bank has approached this Court with the following prayers.
“A. issue a writ of mandamus or other appropriate writ or order commanding the Respondents 1 to 7 to proceed against the properties/assets of the Respondents 8 to 15 pointed out by the petitioner for realisation of the sales tax arrears before initiating any coercive action against the properties mortgaged to the petitioner Bank (mentioned in Ext.P2)
B. Direct the Respondents 1 to 4 not to make any further demand against the petitioner pursuant to Ext.P4, P7 & P10.
C. Direct the Respondents 1 to 7 to proceed against the other properties mortgaged to the Bank only after exhausting the proceedings for recovery against the unsecured properties/assets of Respondents 8 to 15.
D. Declare that the Revenue Authorities of the State shall before proceedings against the mortgaged properties of the Bank or before demanding Sales Tax dues from the Bank, shall confirm that the defaulter has no other assets/properties to be proceeded against (other than the property mortgaged to the Bank) and/or if the Bank is able to prove that there are other assets in the name of the borrowers, concerned official of the Revenue Authority shall proceed against the said properties pointed out by the Bank for realisation of the sales tax dues.
E. Grant such other reliefs as are deemed fit and proper.
F. Grant the cost of this writ petition. xxx xxx xxx xxx”
2. The prayers sought for in the writ petition are sought to be opposed by the 4th respondent/Tahsildar, Kodungallur by filing a counter affidavit.
3. When the matter was taken up for consideration on 23.11.2009, the following order was passed:
“Not admitted. Issue urgent notice by speed post to respondents 2 to 16 returnable within a week. GP takes notice for 1st respondent. The 4th respondent is directed to file an affidavit before this Court showing details of immovable properties owned by respondents 8 to 15 situated within the Kodungallur Taluk including the properties which are already auctioned under the Revenue Recovery proceedings as well as auctioned by the petitioner Bank under the SARFAESI Act. The affidavit as above shall be filed within a period of three weeks from today.”
When the matter came up for further consideration on 29.10.2012, the following order came to be passed:
“In this I.A., filed by the writ petitioner, the prayer sought is to stay further proceedings pursuant to Ext.P12, a notice issued under the provisions of the Revenue Recovery Act for sale of half of the property mentioned therein which is owned by respondents 12 and 14.
2. Case of the petitioner is that the property in question is mortgaged to it and that the revenue recovery proceedings have been initiated against the property for recovery of the sales tax dues, despite the fact that the defaulters possess other items of valuable unencumbered properties which are available to be proceeded against.
3. Counter affidavit filed by the 4th respondent also show that certain other properties owned by respondents 9 and 12 which are attached on 29.11.2006, are available to be proceeded against. If that be so, fairness requires that the other unencumbered properties should first be proceeded against and thereafter, properties which are mortgaged to the Bank or the sale consideration that was realized by the Bank can be proceeded against, either on the authorities failing to sell unencumbered properties or if the sale consideration realized is inadequate to discharge the liability.
4. Therefore, for the present, the following orders are passed:-
(i). Further proceedings pursuant to Ext.P12 will stand stayed.
(ii). Respondents 3 to 7 or the competent among them, will take steps for sale of unencumbered and attached properties of defaulters which are mentioned in paragraph 4 of the counter affidavit filed by the 4th respondent. This they shall do as expeditiously as possible and thereafter, they shall file a report before this Court for issuing further directions in the matter.
(iii). It is also directed that the Bank shall not unless otherwise ordered by this Court, alienate or encumber the properties which are mortgaged to it.
Post after two months.
Hand over a copy to the counsel for the Bank and the learned Government Pleader.”
4. In the course of further proceedings, the third respondent/Assistant Commissioner has filed a statement dated 28.10.2014, paragraph '2' of which reads as follows:
“It is submitted that, based on the said order, the assessment for the year 2004-05 was completed in this office vide proceedings No.25011045/04-05 dated 06.09.2013 fixing total and taxable turnover Rs.60,58,720/-. The balance tax after giving credit was Rs.3,80,715/-. Against this, the assessee preferred appeal before STAT, Ernakulam. The Honourable Tribunal in TA.No.84/13 dated 19.12.2013 allowed the appeal filed by the assessee directing to delete the addition made towards probable omissions and suppressions. Based on this, the assessment again modified as per Proceedings No.25011045/04-05 dated 30.12.2013. The balance demanded was reduced to Rs.2,835/- after giving credit of the payment made. The dealer opted Amnesty Scheme. The application under Amnesty Scheme was allowed as there was no department appeal pending. The assessee fully paid the amount under the Amnesty. At present, there is no arrears outstanding against the assessee.
5. The learned Counsel appearing on behalf of the parties submit that the property has been sold by the Bank and that the same was purchased by the respondent No.16 satisfying the entire sale consideration. It is also brought on record that the defaulter satisfied the amount payable to the Government, availing the benefit under the Amnesty Scheme and that no further proceedings are pending and no arrears are outstanding against the assessee, as putforth by the third respondent in their statement.
6. In the said circumstances no further orders are called for. The writ petition is closed accordingly. This Court makes it clear that the dispute, if any, between the petitioner Bank and the concerned borrower/defaulter is left open.
P.R.RAMACHANDRA MENON JUDGE lk