W.P.(C). No. 37031 of 2008 (H) - Joji Paul v. District Collector, Ernakulam; Tahsildar, Kunnathunadu; Commercial Tax Officer, Tirupparankundra Circle, Madurai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 ## **WP(C).No. 37031 of 2008(H)** PETITIONER: --------------- JOJI PAUL, S/O. N.P. PAUL, NEDUMKANDATHIL HOUSE, THOTTUVA, KOOVAPPADY.P.O, PIN - 683 544. BY ADV. SRI.K.JAJU BABU SRI.SAIGI JACOB PALATTY RESPONDENTS: - --------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. THE TAHSILDAR, KUNNATHUNADU, PERUMBAVOOR. 3. THE COMMERCIAL TAX OFFICER, TIRUPPARANKUNDRA CIRCLE, MADURAI, TAMILNADU. R1 AND R2 BY GOVERNMENT PLEADER SRI.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **' PETITIONER S EXHIBITS** : |EXT.P1|TRUE COPY OF THE RELEVANT EXTRACT TO THE MEMORANDUM| |---|---| ||OF ASSOCIATION OF MADURAI RUBBER COMPANY (P) LIMITED.| |EXT.P2|TRUE COPY OF THE NOTICE DATED 4.12.2008 VIDE NO.B10/23355/03| ||ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.| |EXT.P3|TRUE COPY OF THE JUDGMENT DATED 3.12.2003 IN W.P.(C) NO.17949| ||OF 2003 BEFORE THIS COURT.| |EXT.P4|TRUE COPY OF THE REPLY DATED 11.2.2004 VIDE NO.D4-6337/03| ||ISSUED BY THE SECOND RESPONDENT.| |EXT.P5|TRUE COPY OF THE NOTICE DATED 13.3.2003 VIDE NO.A3/2835/97| ||ISSUED BY THE THIRD RESPONDENT.| |EXT.P6|TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER| ||ISSUED BY DR.G.SRIKUMAR.| |EXT.P7|TRUE COPY OF THE OBJECTION DATED 10.12.2008 VIDE| ||NO.B10/23355/03 SUBMITTED BY THE PETITIONER BEFORE THE| ||FIRST RESPONDENT.| |EXT.P8|TRUE COPY OF THE ADDITIONAL OBJECTION DATED 11.12.2008| ||SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.| ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------W.P.(C). NO. 37031 OF 2008 -----------------------------------------------------Dated this the 29[th] day of July, 2010** ## **JUDGMENT** The petitioner was one of the Directors of Madurai Rubber Company Pvt. Ltd., a company registered under the Companies Act, 1956. The registered office of the Company is in Tamil Nadu. It would appear that the Company was liable to pay sales tax arrears to the tune of Rs.27,18,490/- under the Tamil Nadu General Sales Tax Act. Ext.P5 requisition dated 13.3.2003 was issued by the Commercial Tax Officer, Tirupparankundram Circle, Madurai (third respondent) to the District Collector, Ernakulam for realisation of a sum of Rs.27,18,490/- from Madurai Rubber Company Pvt. Ltd. by taking recourse to revenue recovery proceedings. In Ext.P5 requisition, it is also stated as follows: “The defaulter is available in the following address. Thiru Jothi Paul, S/o.N.P.Paul, Nedunkandathil House, Cherra Nallur Post, Perambalur, Ernakulam District, Kerala State.” On 4.12.2008, the District Collector, Ernakulam issued Ext.P2 show ## W.P.(C) NO.37031 OF 2008 :: 2 :: cause notice to the petitioner under Section 65 of the Kerala Revenue Recovery Act directing him to show cause why he should not be committed to the civil prison. Ext.P2 is a printed form. Four grounds for arriving at the satisfaction of the District Collector are printed in Ext.P2, out of which, satisfaction on two counts was said to have been made out, by ticking the two particular items. Ext.P2 is under challenge in this Writ Petition. 2. The reliefs prayed for in the Writ Petition are the following: - “(i) Issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P2 and quash the same or in the alternative direct the 1[st] respondent to consider Exts.P7 and P8 taking into account the factual and legal contentions put forward therein and pass appropriate orders and communicate the same to the petitioner. - (ii) Declare that the proceedings initiated by respondents 1 & 2 against the petitioner invoking the provisions of the Revenue Recovery Act 1968 leading to Ext.P2 on the basis of Ext.P5 wherein Madurai Rubber Company Pvt. Ltd. is shown as the defaulter is illegal and without jurisdiction and therefore null and void. W.P.(C) NO.37031 OF 2008 :: 3 :: - (iii) Direct the 1[st] respondent not to take any coercive steps for issuance of warrant of arrest or detention of the petitioner without giving a reasonable time after communicating the order passed pursuant to Ext.P2, P7 and P8. - (iv) Issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and - (v) Award costs to the petitioner.” 3. Sri.K.Jaju Babu, the learned counsel appearing for the petitioner, submitted that going by the requisition, the defaulter is the Company. Recovery was sought to be made from the defaulter only. The petitioner is not the defaulter, but he is only a Director of the defaulter Company. It is submitted that going by the decisions of this Court, it is well settled that a Director of a Company cannot be personally held responsible for the amount due from the Company. 4. In **Punalur Paper Mills Ltd. & Another** v. **District Collector, Quilon** (1985 KLT 758), it was held as follows: W.P.(C) NO.37031 OF 2008 :: 4 :: “... It therefore follows that in the absence of a specific provision in the Sales Tax Act fastening liability on the Director or the Managing Director of a Company for the tax due by the Company, I am of the view, that no proceedings can be initiated against the Director or the Managing Director for recovery of the said dues. 12. If that is not possible, how could the proceedings initiated by the 1[st] respondent under S.65 of the Revenue Recovery Act to recover the tax aforesaid, from the 2[nd] petitioner, be valid? S.65 of the Revenue Recovery Act has to be read along with S.23 (2)(a) of the Sales Tax Act. De hors S.23(2)(a), there is no scope for applying S.65 of the Revenue Recovery Act, in the case. The proceedings contemplated by S.65 of the Recovery Act, therefore, are analogous to execution proceedings and the District Collector who is empowered to recover the sales tax arrears treating the same, by a fiction as an arrear of land revenue by S.23 (2)(a) of the Sales Tax Act, is in the position of an executing Court with power to commit a defaulter to civil prison. The District Collector therefore cannot go behind the order of assessment which is sought to be executed by resort to S.65. He has to execute the order of assessment as it is. And therefore unless the 1[st] respondent establishes that the person against whom ## W.P.(C) NO.37031 OF 2008 :: 5 :: recovery proceedings are initiated, is a defaulter within the meaning of the Sales Tax Act, the proceedings under S.65 of the Revenue Recovery Act is liable to be vacated. In this connection, it is relevant to note that the 1[st] respondent has conceded that the amounts sought to be recovered from the 2[nd] petitioner represent the arrears of tax assessed and found due by the 1[st] petitioner-Company. Ext.P3 proceedings of the District Collector therefore is one passed without jurisdiction and hence void ab initio. It is non est.” ## 5. In **Nishad Patel** v. **State of Kerala** (1998(2) KLT 793), it was held that the Directors of a company cannot be personally made liable to pay arrears of sales tax. It was held that it is settled law that the company is a legal entity distinct from its share holders as well as its Directors and as such, no proceedings can be taken against the Directors of a company for recovery of any amount whatsoever due from the company. ## 6. In **Kuriakose** v. **P.K.V.Group Industries** (2002 (2) KLT 342), the Division Bench held thus: “5. The decisions reported in _Ramachandran v. State of kerala,_ 1983 KLT 1024 and _Punalur Paper Mills_ ## W.P.(C) NO.37031 OF 2008 :: 6 :: _Ltd. & Anr. v. District Collector, Quilon_ 1985 KLT 758 were cited for the proposition that unless by special law, the Managing Director is mulcted with personal liability he is not liable. In _Kundan Singh v. Moga Transport Co. (P) Ltd. & Ors._ , 62 Company Cases 600, the question arose under the Industrial Disputes Act. there is no provision in the Companies Act or the Industrial Disputes Act making the Managing Director personally liable. the Punjab and Haryana High Court held that there is no provision either in the Companies Act or in the Industrial Disputes Act, which makes the Managing Director of a Company personally liable for recovery of dues against the company. In another decision reported in _H.S.Sidana v. Rajesh Enterprises_ , 77 Company Cases 252, the same High Court has held that where there was a decree for recovery of sums due to a bank from a Company in a suit against the Company and its Managing Director, the liability to discharge the decretal amount was that of the Company and not of its Managing Director. The Executing Court could proceed against the Managing Director of the judgment debtor Company only if it came to the conclusion that the Managing Director was personally liable to discharge the decretal amount.” 7. Even though Ext.P2 is only a notice and even though it can be said that the petitioner would be entitled to make a reply to Ext.P2 W.P.(C) NO.37031 OF 2008 :: 7 :: notice and contest the case, it cannot be lost sight of that the petitioner apprehends his arrest and detention on his appearance before the District Collector. It was pointed out that in _Punalur Paper Mills' case_ it so happened and the Managing Director was sent to jail. The Government put forward an argument in _Punalur Paper Mills' case_ that even on quashing the order of detention, the detenue was not liable to be released. The petitioner apprehends that all such types of arguments would emerge and nothing would be a solace to him once he is detained in civil prison, particularly when he has undergone a major accident and sustained physical disabilities as a result of the accident. 8. The next question for consideration is whether interference is called for at this stage before any final order is passed by the District Collector. It is contended that the Collector had issued only a show cause notice and the remedy of the petitioner is to raise all his contentions before the Collector. If the proceedings before the Collector are without jurisdiction, I do not think that the petitioner should undergo the ordeal of contesting the proceedings and if the order goes against him to challenge the order. If there is an absolute lack of jurisdiction in the matter of initiating proceedings under ## W.P.(C) NO.37031 OF 2008 :: 8 :: Section 65 of the Kerala Revenue Recovery Act, a writ can be issued under Article 226 of the Constitution of India to quash the proceedings. (See _The Bengal Immunity Co. Ltd_ . v. _The State of Bihar_ (AIR 1955 SC 661); _Carl Still G.m.b.H. and another_ v. _The State of Bihar and others_ (AIR 1961 SC 1615.) In view of the settled legal position as mentioned in the preceding paragraphs and in view of the admitted facts, it is not necessary to insist that the petitioner should appear before the District Collector and show cause as to why he should not be arrested. For the aforesaid reasons, Ext.P2 notice under Section 65 of the Kerala Revenue Recovery Act issued by the District Collector, Ernakulam is quashed. All proceedings initiated by the District Collector against the petitioner under Section 65 of the Revenue Recovery Act shall stand quashed. The Writ Petition is allowed as above. **(K.T.SANKARAN) Judge** ahz/