High Court Of Kerala
Siby Jose vs. Tax Recovery Officer & Ors.
Section ART. 226, 281
K. Balakrishnan Nair, J.
Writ Petn. No. 21550 of 2005
9th March, 2006
Counsel Appeared
R. Sudhir, for the Petitioner : P.K.R. Menon, George K. George, Mohan Pulikkal & Paulcy Kurian, for the Respondents
JUDGMENT
K. Balakrishnan Nair, J. :
The petitioner is the transferee of the property, covered by Exhibit P1 sale deed, executed by the fourth respondent. The fourth respondent is in default to the IT Department. This writ petition is filed challenging Exhibit P7 communication, issued by the first respondent, stating that the transfer of the property, covered by Exhibit P1, made by the fourth respondent, in favour of the petitioner, is invalid. This is an order on a claim petition filed by the writ petitioner under r. 11 of Sch. II to the IT Act. Going by Exhibit P7, it would appear that the fourth respondent defaulter has been served with a notice on 13th Nov., 1997, itself. Therefore, according to the first respondent, any transfer made thereafter is void, as the fourth respondent is disabled from dealing with his properties. The petitioner seriously attacks the findings in Exhibit P7. According to him, he entered into an agreement in 1993 with the fourth respondent for the purchase of the property. An advance of rupees two lakhs was paid in 1993. The entire sale consideration was paid by 2000. Finally, after filing a suit for specific performance, the sale deed was executed on 17th May, 2004. There is no material on record to show that the notice has been served on the defaulter before the execution of the sale deed. So, he contends, Exhibit P7 is invalid.
2. The fourth respondent has filed a counter-affidavit in the writ petition. According to him, the notice regarding default has been served on him only in 1997. But the agreement was executed in 1993. The dispute raised in this writ petition can be more conveniently adjudicated in a suit under r. 11 (6) of the abovesaid Schedule to the Act. The disputed facts cannot be decided in a proceeding under Art. 226 of the Constitution of India. Accordingly, the writ petition is dismissed without prejudice to the contentions of both sides and the right of the petitioner to invoke the remedy available under r. 11(6) of the Act.
[Citation : 289 ITR 177]
