High Court of KeralaSingle JudgeDisposed of on merits by directing mutation; re...

W.P.(C) No.30283 of 2010 (I)

Case / Petition Number:WPC.No.30283 of 2010 (I)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh
Judgment Date
2012-01-04
Court Decision / Holding
The writ petition is disposed of directing the first respondent Village Officer and the second respondent Tahsildar to effect mutation of the property covered by Ext.P1 sale certificate in favor of the petitioner within one month from the date of production of a copy of the judgment. It is clarified that the revenue recovery proceedings initiated for collection of tax under the Kerala General Sales Tax Act, or for recovery of amounts due to the Kerala Financial Corporation or the Kerala State Electricity Board, will not be hindered or affected by the mutation.
Final Disposition
Disposed of on merits by directing mutation; revenue recovery actions not affected by mutation.

Parties to the Case

Appellants / Petitioners

  • K.P. Venugopal, S/o Parameswara Kurup, Abilash Apartments, South Janatha Road, Ernakulam-25

Respondents

  • Village Officer, Koovappady
  • Tahsildar, Kunnathunadu
  • Kerala Financial Corporation, rep. by Manager, Perumbavoor
  • Sales Tax Officer, Commercial Taxes, 1st Circle, Perumbavoor
  • Asst. Sales Tax Officer, Commercial Taxes, Angamaly
  • State Bank of Travancore, Asset Recovery Management Branch, SBT Bhavan, Panampilly Nagar, Ernakulam (assisted by A.G.)

Legal Representation & Advocates

Counsels for Petitioners

  • • M.A. Abdul Hakhim
  • • M.G. Anon

Counsels for Respondents

  • • Manjo P. Kunjachen, Sr. Gov. Pleader
  • • M.M. Sayed Muhammed, SC, KFC
  • • Sathish Ninan

Case Synopsis & Summary

This writ petition under W.P.(C) No.30283 of 2010 (I) challenges mutation of title in favor of the petitioner following Ext.P1 sale certificate issued in the wake of proceedings under the SARFAESI Act against Esthappan and his concerns. The 8.25-acre property, described as the 'C' schedule in Ext.P4 Partition Deed, originally belonged to Esthappan and was partitioned in 1985. The petitioner states he holds Ext.P1 as purchaser; the same property has been charged by the Kerala Financial Corporation and attached in recovery proceedings. The petition seeks a mutation by the Village Officer and Tahsildar to record the petitioner as owner and to receive basic tax. The respondents argue mutation does not affect revenue recovery rights and is subject to Section 26A of the Kerala General Sales Tax Act, which provides that a transfer or charge shall be void as against tax claims. The court notes that mutation is intended to facilitate payment of tax and revenue collection, and will not prejudice creditors or debtors; it refers to Thulasibhai v. State of Kerala for support. The court disposes the petition by directing mutation to be effected within one month from production of the judgment copy, clarifying that ongoing revenue recovery actions remain unimpeded.

Provisions of Law Cited

Kerala General Sales Tax Act, Section 26ASecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends entitlement to mutation of Ext.P1 sale certificate in his favor to enable possession and payment of basic tax. He asserts Ext.P1 proves ownership arising from a sale connected with Esthappan’s assets (Moolan Food Products Pvt. Ltd. and the partnership Moolan Modern Rice Mills). He seeks mutation solely to record ownership, arguing mutation facilitates revenue collection without adjudicating the inter-creditor rights; he confines relief to mutation.

Contentions of Respondents

The respondents maintain that mutation should not impede ongoing revenue recovery. Relying on Section 26A of the Kerala General Sales Tax Act, they submit that transfers/charges cannot defeat tax claims; mutation is merely a tool to facilitate payment and revenue collection, and does not prejudice creditors’ rights. The Government Pleader cites policy and precedent (including Thulasibhai v. State of Kerala) to support the position.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Thulasibhai v. State of Kerala2010 (4) KLT 215PositiveCited to support the proposition that mutation is for facilitating tax collection and does not affect the rights of creditors or debtors.
W.P.(C) No.35555 of 2009WPC 35555/2009Mentioned OnlyExt.P2 refers to a prior judgment; used as documentary reference but not explicitly discussed in reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** **WPC.No. 30283 of 2010 (I)** **=====================** ## **PETITIONER(S) :** - **============** **1. K.P.VENUGOPAL, S/O.PARAMESWARA KURUP, ABILASH APPARTMENTS, SOUTH JANATHA ROAD ERNAKULAM-25.** - **BY ADVS.SRI.M.A.ABDUL HAKHIM SRI.M.G.ANON** **RESPONDENT(S) :** - **==============** **1. VILLAGE OFFICER, KOOVAPPADY.** **2. TAHSILDAR, KUNNATHUNADU.** **3. KERALA FINANCIAL CORPORATION, REP.BY MANAGER** , **PERUMBAVOOR.** ## *** ADDL. RESPONDENT 4 TO 6 IMPLEADED** **4. SALES TAX OFFICER, COMMERCIAL TAXES, 1ST CIRCLE, PERUMBAVOOR.** **5. ASST. SALES TAX OFFICER, COMMERCIAL TAXES, ANGAMALY.** **6. STATE BANK OF TRAVANCORE, ASSET RECOVERY MANAGEMENT BRANCH, SBT BHAVAN, PANAMPILLY NAGAR, ERNAKULAM REPRESENTED BY ITS ASSISTANT GENERAL MANAGER.** **ADDL. RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER ORDER DATED 04.02.11 IN IA 1748/11** - **BY SRI.MANOJ P KUNJACHEN, SR.GOVT. PLEADER. SRI.M.M.SAYED MUHAMMED, SC, KFC SRI.SATHISH NINAN** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** ## **WPC.No. 30283 of 2010 (I)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** - **P1. : COPY OF THE SALE DEED NO.1438/2010.** - **P2. : COPY OF THE JUDGMENT IN WPC 35555/2009 OF THIS HON'BLE COURT.** - **P3. : COPY OF THE LETTER DATED 11.07.2010 ISSUED BY THE IDBI BANK BRANCH AT PANAMPILLY NAGAR.** - **P4. : COPY OF THE PARTITION DEED NO.1668/1985 OF SRO, PERUMBAVOOR.** - **P5. : COPY OF THE AFFIDAVIT EXECUTED BY MR.ESTHAPPAN.** - **P6. : COPY OF THE REVENUE RECOVERY CERTIFICATE ISSUED AGAINST M/S.MOOLAN FOOD PRODUCTS PVT. LTD. AND ITS DIRECTORS.** - **P7. : COPY OF THE REVENUE RECOVERY CERTIFICATE ISSUED AGAINST MR.M.O.ESTHAPPAN.** - **P8. : COPY OF REPORT OF THE 1ST RESPONDENT.** - **P9. : COPY OF THE CERTIFICATE OF INCORPORATION OF M/S.MOOLAN FOOD PRODUCTS (P) LTD.** - **P10. : COPY OF THE MEMORANDUM OF ASSOCIATION OF M/S.MOOLAN FOOD PRODUCTS (P) LTD.** - **P11. : COPY OF THE ARTICLE OF ASSOCIATION OF M/S.MOOLAN FOOD PRODUCTS (P) LTD.** ## **RESPONDENTS' EXHIBITS :** ## **R2 (A) : COPY OF THE JUDGMENT DATED 02.04.2008 IN WPC NO10702/2008.** ## **/TRUE COPY/** **P.A.TO JUDGE** ## **AMV** ## **V.CHITAMBARESH, J.** ------------------------------- ## **W.P.(C) No.30283 of 2010** ------------------------------- **Dated this the 4[th] day of January, 2012** ## **J U D G M E N T** The only prayer in the writ petition is for a direction to the first respondent Village Officer to effect mutation in respect of the property covered by Ext.P1 sale certificate in favour of the petitioner and to receive basic tax. The petitioner claims to be the owner of the property under Ext.P1 sale certificate issued pursuant to the proceedings initiated by the sixth respondent Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The property originally belonged to one Esthappan under Ext.P4 Partition Deed dated 18.3.1985 executed between himself and his brothers. The property in question of extent of 8.25 Ares of land covered by Ext.P1 sale certificate is the 'C' schedule in Ext.P4 Partition Deed. It appears that the sons of Esthappan by name, Joji Esthappan and Jeejo Esthappan are Directors of Moolan Food Products Pvt. Ltd. (hereinafter referred to as 'the Company'). Esthappan and his two sons are also partners of Moolan Modern Rice Mills (hereinafter W.P.(C) No.30283 of 2010 2 referred to as 'the Partnership firm'). 2. It appears that substantial amounts are due from the Company as well as the Partnership firm to the State as liability under the Kerala General Sales Tax Act. The Kerala Financial Corporation has in addition attached the very same property for recovery of amounts due to it. Ext.P6 is the revenue recovery notice issued against the Company and Ext.P7 is the revenue recovery notice issued against Esthappan as a partner of the Partnership firm. 3. I am not called upon to decide the inter se right of the creditors or the liability of the debtors. This is particularly so since neither the Company nor the Partnership firm or even Esthappan has been impleaded in the writ petition. The contention of the petitioner as regards adjudication of the liability is left open to be considered in appropriate proceedings. The writ petitioner confines his relief to mutation only irrespective of the revenue recovery proceedings pending. 4. The learned Government Pleader points out that W.P.(C) No.30283 of 2010 3 the revenue recovery proceedings are not affected in view of Section 26A of the Kerala General Sales Tax Act. The same categorically states that a charge or transfer of the property shall be void as against any claim in respect of any tax or sum payable by the assessee under the Kerala General Sales Tax Act. It has to be borne in mind that mutation is only for the purpose of facilitating payment of tax and collection of revenue by the State. The mutation or the subsequent payment of tax will not at all affect the right of either the creditor or the debtor. I am supported in this view by the dictum in **Thulasibhai v. State of Kerala** (2010 (4) KLT 215). The writ petition is hence disposed of directing the first respondent, Village Officer, and the second respondent, Tahsildar to effect mutation of the property covered by Ext.P1 sale certificate in favour of the petitioner. The same shall be done within a period of one month from the date of production of the copy of the judgment. It is however made clear that the revenue recovery proceedings initiated either for collection of tax W.P.(C) No.30283 of 2010 4 under the Kerala General Sales Tax Act or for recovery of amounts due to the Kerala Financial Corporation or the Kerala State Electricity Board will not be hindered or affected by the mutation so carried out. **V.CHITAMBARESH, Judge.** nj. ## **V.CHITAMBARESH, J.** -------------------------------------- W.P.(C) No. 30283 of 2010 ## **JUDGMENT** Dated:- 4[th] January, 2012 --------------------------------------