Decided on December 31,2003



Harihar P.Chaturvedi, - (1.)THIS Appeal is preferred by the appellant against the impugned order passed by the Recovery Officer-I of this Tribunal dated 7.10.2002 (in IA 1/2002 in DRC No. 155/2001). In the impugned order under challenge the Recovery Officer has rejected the prayer of the 3rd party auction purchaser for making payment of the dues on the property sold to the appellant which amounts to Rs. 32,265/-.
(2.)It is the contention of the appellant that the property was purchased by him on the basis of the Advertisement published in 'Dinamalar' dated 16.3.2002 and in the said Advertisement it was not mentioned that the property under sale is having some prior encumbrance and other dues. After taking possession of the said property only he was informed by the Association of the Apartment Owners (Queens Court Association) about certain dues, i.e. monthly maintenance, water tank repair charges, etc. It was further made clear to the purchaser that in case arrears of dues are cleared or paid by him, he would not be able to get supply of water nor he can enjoy the common amenities of the Society such as lift, parking, etc. as the property purchased is situated at the 7th floor of the building. Hence, he was forced to pay a sum of Rs. 9,100/- to the Association. Apart from this, the appellant was further informed about certain statutory dues like Metro Water and Corporation of Chennai on account of water tax, water charges and property tax respectively and if these dues are not paid, he may be deprived of having benefit of purchasing the property and the property may be attached by the Corporation for want of clearance of dues. Therefore, the appellant seek indulgence of this Court in the form of a direction to the Bank to reimburse/ refund the statutory dues, water tax, property tax, society charges, etc. to the appellant.
The appellant has further claimed protection under Sections 53(b) and 53(d) of the Second Schedule of the Income Tax Act where it is obligatory and incumbent on the part of the seller to disclose the material information to the purchaser to know and to judge the nature and the value of the property. He further claimed that his right has accrued being a purchaser under the relevant provisions of the Transfer of Property Act, wherein it is encumbent upon on the seller/vendor under Section 55(1)(g) of the Transfer of Property Act to deliver the property free from encumbrance if it is not sold subject to encumbrances. But it is not done in the present case. Hence the appellant filed a petition before the Recovery Officer for refund of the said amount, but the same was dismissed by the Recovery Officer vide impugned order dated 7.10.2002. Hence, the present Appeal.

(3.)THE learned Recovery Officer in his order has taken this stand that the provision Section 55(1)(g) of the T.P. Act may not be applicable to the case of the present sale through Court when the sale is conducted by the Government and this duty/obligation can be imposed only to a private seller. He further opined that in any public auction, where by the State Government or by a Court, the property is sold mainly on "As is where is basis" and the amount is recovered to satisfy the statutory dues under the Recovery Certificate from the sale proceeds of the property sold in public auction and it is to be understood well that other statutory dues in respect of the property sold in public auction is to be borne only by the purchaser. Hence, according to the Recovery Officer, the appellant is not entitled for claiming such dues. Similar stand has also been taken by the respondent Bank by filing counter, by supporting the impugned order passed by the Recovery Officer.

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