Stay against recovery
Manish Raj Verma
(Querist) 24 May 2014
This query is : Resolved
My brother is the owner of a company at haridwar, who purchased a property from SIDCUL (State Infrastructure and Industrial Development Corporation of Uttaranchal) on dated 27 Nov. 2009 via lease deed for 90 years.
Now an Amin from Tehsil comes at the site / factory of my brother and shows a Recovery Certificate issued by Tehsildar Office for recovering an amount of about 3 lac + others + interest which is in the name of some other company for the AY 2008-2009 of Sales Tax Department. On investigation from sales tax department it was found that the previous company existed there, this was the recovery of that company not of my brothers company. But the amin is harassing us to recover the dues. He has already taken some amount against said RC against receipt.
What should I do.
Can we go for Stay suit against the said Recovery in the civil court and what about the notice of Sec. 80 CPC and whether the court will award the stay in our favour. please help.
ROHIT SHARMA
(Expert) 24 May 2014
Dear Mr. Manish Raj Verma,
1. This Amin from Tehshildar's officer is an impersonator. The Tehshildar 's Office has nothing to do with sales tax recovery. Nor does the Tegsidlar comes into picture if your father has taken such grant of lease directly from the concerned S.I.D.C,U.
2. Even the sales tax department has revealed to you that the recovery pertains to the previous occupant lease holder of such plot.
3. Tehsildar is more concerned with revenue and not sales tax recovery.
4. Ask this chap to prove his identity as who has authorized him to collect such sales tax recovery.
5. If he fails to prove his identity then you can file a police complaint against him u/s 389 of I.P.C. charging him of the offence of putting you in fear of accusation of offence in order to commit extortion.
6. If he is sales tax department Amin then you need to file a notice u/s 80 of the C.P.C. and then file a civil suit u/s 9 r/w Order 39 Rule 1 of the C.p.C. seeking injunction against such recovery.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E-Mail : lawgate1349@gmail.com
Dr J C Vashista
(Expert) 25 May 2014
Mr. Manish,
Take the notice from so-called Amin.
You are required to satisfy the genuiness of the amin who is prima facie imporsonating to be amin of Tehsildar.
Visit Tehsildar and findout the facts, the tehsildar has no business/autority or jurisdiction for sales tax except when there is some execution pending in Court and Tehisldar has been issued with a warrant for attachment.
Engage a local lawyer and proceed.
Rajendra K Goyal
(Expert) 25 May 2014
Tehsildar can recover govt dues of other departments from defaulters provided such law exist in the state. Even Bank loan over dues are also recovered by tehsildar and in many states such law exist.
If the outstanding does not belong to you send notice to tehsildar, sales tax department and the Amin, and if no response take stay from court.
ajay sethi
(Expert) 25 May 2014
you will have to move court and obtain stay against notice for recovery of sales tax dues .
since you had signed 90 year lease with Uttaranchal corporation in 2009 you are not liable for previous company dues
Sankaranarayanan
(Expert) 25 May 2014
follow as advised by experts i do agree with experts
Raj Kumar Makkad
(Expert) 26 May 2014
Well advised by experts hence no scope to enter.
Biswanath Roy
(Expert) 26 May 2014
Over and above the valuable opinions of the Experts I need add here that the Sales Tax liabilities are the liabilities strictly to the registered DEALER only not to the owner of the Land or Factory. So, the collection made by the Tehshilder or his agent is highly illegal and you may seek redress and relief from the appropriate Civil Court of jurisdiction.
Guest
(Expert) 26 May 2014
Mr. Manish,
Your query lacks the following most vital information on which success or failure in the case can depend:
1) Whether the property purchased through SIDCUL pertained to the cancellation of lease or acquired/ reacquired by SIDCUL through attachment decree on account of default in loan repayment by the previous company?
2) Whether your brother happened to be one of the directors of the former company?
3) What was the date of acquisition of property from the company by SIDCUL?
4) Whether the case pertaining to the recovery certificate, or certificate of recovery, itself, by Tehsildar pertained to the earler or later date of acquisition by SIDCUL?
5) Whether the terms & conditions of SIDCUL contained the provision that, except that of SIDCUL, any past liability of the company would become the liability of the purchaser?
Unless you are sure on these aspects, your winning the case can be doubtful.
Further, to whom do you propose to serve legal notice u/s 80 should also be clear, i.e to SIDCUL, the Tehsildar, the Revenue Department or anyone else?
I hope, you being an advocate, yourself, can very well understand the basic necessity of the information on the aforesaid points.
T. Kalaiselvan, Advocate
(Expert) 26 May 2014
The author may first answer the queries raised by expert Mr.Dhingra if he really needs more opinions to his query.
Manish Raj Verma
(Querist) 26 May 2014
Dear Respected gentlemen I thank you all from the bottom of my heart.
Here r the answers for the queries raised by learned Mr. Dhingra.
1) Whether the property purchased through SIDCUL pertained to the cancellation of lease or acquired/ reacquired by SIDCUL through attachment decree on account of default in loan repayment by the previous company?
Not applicable. The previous occupant/lessee surrenderd back the property to SIDCUL, and then the SIDCUL tranferred it in our favour through lease deed dated 27/11/2009.
2) Whether your brother happened to be one of the directors of the former company?
Not at all.
3) What was the date of acquisition of property from the company by SIDCUL?
By Lease deed dated 27/11/2009
4) Whether the case pertaining to the recovery certificate, or certificate of recovery, itself, by Tehsildar pertained to the earler or later date of acquisition by SIDCUL?
Yes of course it is the dues of A.Y. 2008-09 i.e. from April, 2008 to March 2009, and we acquired it on 27/11/2009
5) Whether the terms & conditions of SIDCUL contained the provision that, except that of SIDCUL, any past liability of the company would become the liability of the purchaser?
No such conditions mentioned in the lease deed in question.
Unless you are sure on these aspects, your winning the case can be doubtful.
Further, to whom do you propose to serve legal notice u/s 80 should also be clear, i.e to SIDCUL, the Tehsildar, the Revenue Department or anyone else?
Sec. 80 Notice will be given to District Magistrate, because the Tehsildar Office is under his jurisdiction. and I would seek the application U/s. 80(2) CPC for exempt of serving the notice U/s. 80 CPC, kindly suggest some case laws.
I again thanks a lot you all learned persons. Thanks
Guest
(Expert) 27 May 2014
Thanks for the info.
In fact, instead of making part payment on receipt by Amin, your brother could have taken stay order and appealed against the orders of the Tehsildar to get that quashed by apprising the competent court that the liability of the previous company lied either on the previous company/ lease holder or the SIDCUL.
Now since your brother had already paid the part payment under receipt come complications are likely arise, as the Government Counsel may raise the point why he paid and not objected to earlier, if the liability did not pertain to her.
However, at first must try to convince the Tehsildar of the mistake and to withdraw his orders and also treat the payment to have been paid under protest just to avoid harassment by the Amin by making formal representation. If the Tehsildar declines to withdraw his order, must prefer appeal before the appellate revenue court or the other competent court depending upon the nature of the case, whether the recovery has been ordered treating the dues as land revenue or otherwis, as the case may be.
However, before doing all that, must go through the terms & conditions of SIDKUL to recheck again if no such condition about past liability of the previous owner exists.
Guest
(Expert) 27 May 2014
Your brother can also file a case of cheating & fraud against the SIDCUL for delivering land, which was not free from encumberance.
