Karnataka H.C : Is the plaintiff a registered firm and is G.M. Ashok competent to represent it in this suit ?

High Court Of Karnataka

Prakash Textiles vs. Tax Recovery Officer

Sections 281, 222, SCH. II, Rule 16

G.N. Sabhahit, J.

Regular Second Appeal No. 656 of 1981

21st October, 1982

Counsel Appeared

S. K. V. Chalapathy, for the Petiioner : K. Srinivasan, for the Respondent

SABHAHIT, J.:

This appeal by the plaintiff is directed against the judgment and decree dated April 10, 1981, passed by the VIII Addl. City Civil judge, Bangalore, in Regular Appeal No. 188 of 1980, on his file, dismissing the appeal, on confirming the judgment and decree dated April 16, 1977, passed by the First Addl. First Munsiff , Bangalore, in Original Suit No. 69 of 1975, on his file, dismissing the suit of the plaintiff.

2. Plaintiff filed a suit for permanent injunction to restrain defendant-1 from selling the suit schedule property and in any way interfering with his possession and enjoyment thereof. The plaintiff claims that it was a registered partnership firm and that the plaintiff was the absolute owner in possession and enjoyment of the suit schedule Property having purchased the same from defendant-2 under a registered sale deed dated October 24, 1966. Proceedings were initiated by defendant-1 for recovery of arrears of income-tax due by defendant-2 who, in turn, sold the property in question in favour of defendant-1. It is the case of the plaintiff that the suit schedule property could not be attached by defendant-1 as, at that time, it became the property of the plaintiff firm and it was no longer the property of defendant-2. Hence, the plaintiff sought for an injunction to restrain defendant-1 from proceeding with the matter.

The suit was resisted by defendant-1 on the ground that under s. 281 of the IT Act, the sale was manifestly fraudulent and void as it was done with a view to evade the tax. Besides, it was contended that notice under s. 80 of the CPC was not given and the Union Government was not made a party to the proceedings. Hence, the suit was not tenable.

The trial Court raised the following issues as arising from the pleadings : “(1) Is the plaintiff a registered firm and is G.M. Ashok competent to represent it in this suit ? (2) Is the suit bad for non-compliance of the provisions of ss. 79 and 80 of the CPC? (3) Does the plaintiff prove purchase of the suit schedule property by the plaintiff from defendant2 ? (4) If so, is the purchase void under s. 281 of the IT Act, 1961, and vitiated under r. 16 of Sch. II to the IT Act ? (5) Does the plaintiff prove that no orders at all were passed by defendant-1 on the claim petition ? (6) Is the order of defendant-2 conclusive under r. II of Sch. II to the IT Act? (7) Is the plaintiff entitled to the injunction sought for ? (8) To what other relief or reliefs the plaintiff is entitled ?”

5. The trial Court, appreciating the evidence on record, answered issues Nos. 1 to 4 and 6 in the affirmative and issues Nos. 5 and 7 in the negative and ultimately dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the City Civil judge, Bangalore City, and the VIII Addl. City Civil judge, Bangalore City, who heard the appeal in Regular Appeal No. 188 of 1980, on his file, formulated the following points as arising for his consideration in the appeal : “(1) Was the trial Court justified in holding that the suit was bad for non-compliance of the provisions of ss. 79 and 80 of the CPC ? (2) Whether the appellant was entitled for the injunction sought for on the alleged contention that he had purchased the suit schedule property without notice of the attachment by the ITO ?”

The learned Civil Judge, reassessing the evidence on record, answered point No. 1 in the affirmative and point No. 2 in the negative and, in that view, the learned Civil Judge dismissed the appeal of the plaintiff. Aggrieved by the same, the plaintiff has come up with the above second appeal before this Court.

The learned advocate appearing for the appellant strenuously Urged before me that the Union Government was not a necessary party to the suit and no notice under s. 80 of the CPC was necessary to we given to the Union Govt. and that the notice issued to the Officer in question, viz, defendant-1, was sufficient compliance of s. 80 of the CPC. He further submitted that the Courts below were not justified in holding that the sale in favour of defendant-2 by the plaintiff was in violation of s. 281 of the IT Act as also r. 16 of Sch. If to the said Act.

As against that, the learned advocate appearing for respondent-1/ defendant 1 argued supporting the judgment and decree of the trial Court, confirmed by the First Appellate Court.

9. The preliminary point that arises for my consideration in this appeal is : “Whether the Courts below were justified in holding that notice was necessary to the Union Government and that the Union Government was a necessary party to the suit ?

10. The suit is to restrain the TRO arrayed as defendant-1 from proceeding with the sale of the suit schedule property. The sale is for recovery of the tax due to the Central Govt. Therefore, if the relief has to be given, it is obvious that the person who suffers is the Central Govt. and not the TRO in his individual capacity. Therefore, it is obvious that the Central Govt. becomes a necessary party to the suit since, ultimately, it is the Central Govt. which is likely to suffer. That being so, it Was necessary that notice under s. 80 of the CPC should have been issued to the Central Govt. as well as to the TRO in question.

11. That is what is laid down by the Supreme Court of India in the case, State of Maharashtra vs. Chander Kant, AIR 1977 SC 148. In para. 14 of the judgment it is stated thus: “The language of Sec. 80 of the CPC is that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity …… ..”

12. Here, obviously, the TRO has proceeded to attach and also proceeded to sell the property in his official capacity. Therefore, it was necessary to issue notice to the Central Govt. and, by way of abundant caution, against the TRO in question also. Since, admittedly, no notice is issued to the Central Govt. and the Central Govt. is not made a party to thesuit, the suit is not maintainable. That is what is held by the Courts below. I have no reason to differ.

13. In the result, I am constrained to hold that the appeal is devoid of merit and is liable to be dismissed and I dismiss the same.

14. The Central Govt. may consider the request of the assessee to grant him reasonable time to make payment of the tax.

15. No costs of this appeal.

[Citation : 142 ITR 256]

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