Gujarat High Court
Rammohansingh Badshahsingh Tomar vs Debts Recovery Appellate Tribunal on 10 August, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/3131/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3131 of 2018
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RAMMOHANSINGH BADSHAHSINGH TOMAR
Versus
DEBTS RECOVERY APPELLATE TRIBUNAL
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Appearance:
MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1
MR RA MISHRA(481) for the RESPONDENT(s) No. 4
MR DIGANT M POPAT(5385) for the RESPONDENT(s) No. 5
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 10/08/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. S.P. Majmudar, learned advocate for the petitioner has invited the attention of the court to section 29 of the Recovery of Debts and Bankruptcy Act, 1993, which provides that the provisions of the Second Schedule and the Third Schedule of the Income Tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 shall apply to the amount of debt due under the Act. He has further invited the attention of the court to the Second Schedule of the Income Tax Act, 1961, and more particularly, to rules 61 to 63 thereof to point out that the sale of immovable property can be set aside only in the circumstances set out in rule 61 thereof. It was submitted that in the absence of any application for setting aside the sale, the Tax Recovery Officer is required to confirm the sale as provided in rule 63. It was submitted that in the Page 1 of 3 C/SCA/3131/2018 ORDER facts of the present case no application as contemplated under the said rules had been made and hence, the sale in favour of the petitioner could not have been set aside. It was submitted that the course of action adopted by the Tax Recovery Officer accepting the offer of a third party, who had not participated in the auction proceedings is alien to the provisions of law. It was submitted that by the impugned order, the Tax Recovery Officer has set aside his own order, which amounts to reviewing his own order despite the fact that there is no power of review. It was pointed out that all the authorities below have placed reliance on the decision of the Supreme Court in the case of Divya Manufacturing Company (P) Limited, Tirupati Woollen Mills Shramik Sangharsha Samity and another v. Union Bank of India and others, Official Liquidator and others, (2000) 6 SCC 69, however, the Supreme Court in the case of Vedica Procon Private Limited v. Balleshwar Greens Private Limited and others, (2015) 10 SCC 94, has held the said decision to be inconsistent with the decision of the Supreme Court in the case of Navalkha & Sons v. Ramanya Das and others, (1969) 3 SCC 537 and has held that a subsequent higher offer is no valid ground for refusing confirmation of sale or offer already made.
2. This court has also heard Mr. R.A. Mishra, learned advocate for the respondent No.4 and Mr. Digant Popat, learned advocate for the respondent No.5. Having regard to the submissions advanced by the learned advocates for the respective parties, the court is of the view that the matter requires consideration. Hence, issue RULE returnable on 21st August 2018. Mr. R.A. Mishra, learned advocate waives service Page 2 of 3 C/SCA/3131/2018 ORDER of rule on behalf of the respondent No.4 and Mr. Digant Popat, learned advocate waives service of rule on behalf of the respondent No.5. In the meanwhile, the parties shall maintain status quo in respect of the property in question. The matter to be listed on the admission board.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 3 of 3