JUDGEMENT
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(1.)THE present appeal is directed against judgment and decree passed by learned Joint District Judge, Bhavnagar in Regular Civil Appeal No.12 of 1992.
(2.)IT was on the following substantial questions of law that this Appeal came to be admitted:
(i) Whether the sale of press machine in favour of Arihant Metal Industries is void under section 73 of the Gujarat Sales Tax Act?
(ii) Whether the suit is barred by section 64 of Gujarat Sales Tax Act and the Civil Court has no jurisdiction to try such suit?
(iii) Whether the lower appellate court was justified in giving finding on question of collusion and want of jurisdiction especially when these questions were not raised before the Trial Court?
(iv) Whether in view of section 73 of Gujarat Sales Tax Act sale of power press machine to the plaintiff cannot be considered to be void?
(3.)FACTS leading to the present Second Appeal and with reference to which the above substantial questions of law arise may be stated. The plaintiff - Arihant Metal Industries instituted Regular Civil Suit No.341 of 1979 before the Court of learned 3rd Joint Civil Judge (S.D.), Bhavnagar for declaration and permanent injunction to the effect that respondent have no right to sell the suit power press machine and that the proclamation issued by Sales Tax Authorities were illegal. The case of the plaintiff in the plaint was inter alia that they were the owners and in occupation of the factory situated in the town of Sihor in the name and style of Arihant Metal Industries and they had one power press in the factory. The plaintiff had purchased said power press machine from one Jyotishchandra Shantilal Bhuta, the owner of Shree Vallabh Metal Industries, Sihor on 17.04.1979 for Rs.75,000/ -. It was the further case that father of said Jyotishchandra, one Shantilal Manilal Bhuta was the owner of another company called Saurashtra Metal Industries and the said Saurashtra Metal Industries had failed to pay the amount of Sales Tax. Therefore, the properties and machineries situated in his factory were taken in attachment in the year 1974. Thereafter the officers of the Sales Tax Department published two proclamations dated 12.05.1979 and 12.06.1979 for selling the said power press machine.
3.1 In the suit, the plaintiff contended that they had paid Rs.21,668.68 paisa by a cheque to said Vallabh Metal Industries. It was prayed that the said two proclamations be declared to be void and illegal. An injunction was also prayed for to restrain the defendant from proceeding with on the strength of the said proclamations for public auction.
3.2 The defendant Government in its written statement (Exh.14) contended that the press machine belonging to Saurashtra Metal Industries was attached for recovering the sales tax arrears. It was contended that for evading the liability of tax, the said machine was transferred by the owner in favour of his son who was doing business in the name of Vallabh Metal Industries and thereafter the said press machine was transferred to the plaintiff. It was the contention that transaction of transferring the press machine, which was already under attachment for recovery of sales tax dues, was void in view of Section 73 of the Gujarat Sales Tax Act. It was contended that Civil Court had no jurisdiction to try and entertain the suit.
3.3 The trial court dismissed the suit of the plaintiff and relied on Section 73 of the Gujarat Sales Tax Act. It was held that the defendant had proved that the plaintiff purchased the power press machine which had encumbrance of sales tax dues and such purchasing and selling was void. It further held that the plaintiff had knowledge about the fact that machine was subjected to encumbrance of sales tax dues.
Heard learned advocate Mr. Mehul Shah for the appellant and learned AGP Mr. Janak Rawal for the respondent state.
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