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It is lastly stated that impugned order has been issued in violation of Section 100 of the Transfer of Property Act, 1882 (for short "the Act of 1882"). The petitioner-company had no knowledge about the attachment of the property. The issue in reference to the said provision was decided by the Apex Court in the case of The Ahmedabad Municipal Corporation of the City of Ahmedabad Vs. Haji Abdulgafur Haji Hussenghai, reported in 1971 (1) SCC 757. It was held that constructive knowledge about attachment of the property cannot be presumed, though it is to be decided on the facts of each case. In the instant case, petitioner-company was not knowing about first charge and attachment of the property by the State Government and having purchased the property bonafidely for consideration, the attachment should not be allowed to stand.

(6 of 20) [CW-6872/2017] The petitioner-company has made reference of amended provision in ignorance to the attachment of the property in the year 2014 after applying the procedure given under Sections 230 and 239 of the Act of 1956. In view of the above, Section 26E of the Act of 2002 and Section 31B of the Act of 1993 would not apply to the case.

It is further submitted that process, as required under the Act of 1956, was not only initiated but taken as per Sections 230 and 239 of the Act of 1956. The constructive knowledge gets satisfied and it goes against the petitioner-company. The judgment in the case of The Ahmedabad Municipal Corporation of the City of Ahmedabad (supra) would not apply to the facts of this case. In the same manner, there exists no question of application of Section 31 of the Act of 1963. A reference of judgment of the Apex Court in the case of Central Bank of India (supra) has been given. It is applicable to the case for the reason that attachment of the property is prior to amendment in the Act of 2002 and 1993. The amended provision does not otherwise nullify first charge provided under the State legislation, rather, judgment of the Apex Court in the case of Central Bank of India (supra) applies to this case. A further reference of earlier judgment in the case of State Bank of Bikaner and Jaipur Vs. National Iron and Steel Rolling Corporation, reported in (1995) 2 SCC 19 has been given. The prayer is made to dismiss the writ petition.

Learned counsel for petitioner-company has referred Section 100 of the Act of 1882 also. The argument in reference to the (15 of 20) [CW-6872/2017] aforesaid provision was raised before the Apex Court also in the case of Central Bank of India (supra). It has been dealt with in Para 162 to 174 of the said judgment. The reference of the judgment in the case of Dattatreya Shanker Mote Vs. Anand Chintaman Datar, reported in (1974) 2 SCC 799 has been given. The charge in the property can be created either by the act of the parties or by operation of law to make security for payment of money. It is stated that charge is not enforceable against the purchaser of property for consideration. In the instant case, the property in question was purchased by the petitioner-company much subsequent to its attachment under Sections 230 and 239 of the Act of 1956. It was in reference to first charge as per Section 47 of the Act of 2003. The petitioner-company was having constructive knowledge of the process under Sections 230 and 239 of the Act of 1956.

Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed."

In the case of "The Ahmedabad Municipal Corporation of the City of Ahmedabad" (supra), a person was in arrears of property tax. The Municipal Corporation created first charge over the property of the defaulter. The property was, however, sold on the direction of the court. When the Municipal Corporation proposed to exercise their charge over the property, the purchaser filed a suit for declaration. It was to pray that municipal dues are not recoverable from him. The Municipal Corporation urged that State (17 of 20) [CW-6872/2017] law permits creation of charge against the property for settlement of municipal dues. The constructive knowledge of the charge created against property was imputed. It was not accepted by the Apex Court on the facts of that case. It was, however, held that constructive knowledge has to be determined on the facts of each case as is a mixed question of fact and law. In the instant case, the respondent-department has not enforced recovery of dues after sale of the property and its purchase by the petitioner- company, but attachment to enforce first charge is prior to it. The attachment of the property under Sections 230 and 239 of the Act of 1956 was made in the year 2014 itself. The petitioner-company was under an obligation to find out as to whether property is subject to attachment. It could have been from the office of the Collector. The negligence cannot be to their benefit. The judgment in the case of "The Ahmedabad Municipal Corporation of the City of Ahmedabad" (supra) is to be applied after taking into consideration the facts of the case. In the case (supra), purchase of property was prior to the action of Municipal Corporation, whereas, in the instant case, it is just reverse.