Bengal Nagpur Cottan Mills v. Nagar Palik Nigam

ifc.

IN THE HIGH COURT OF JUDICATURE, AT BILASPUR, (C.G.S

M. A. No.- --^-^-- Appellant: /Bengal Nagpur Cotton Mills, A unit of National tpeUant^ m..^i_ ^_.._L_., ^AppUcant'

Textile corPoration LtdThrough its Officer on Specialduty, SsIIII 111116 S.K.Verma S/o Late Shri Brijkishor Verma Aged about 56 years Resident of: BNC Mills Campus, Baldeo Bag, Rajnajidgaon (C.G.) ^^?ZA^i ..^^..^'^\^^ ^^^^..^^^ .ch^ Versus ^.'.-.^'c';'

....••"

.(?

^ .,-} •• ''

tgar Palik Nigam, Rajnandgaon, through its Commissioner, Rajnandgaon P.S. Kotwali, Dist: Rajnandgaon (C.G.).

Rejsliondent ^ Aooeal under Order 43 Rule 1 (r) ofthe Code ofCivil Procedure . _._.-.--^-.--.----- - _(As'aiQst -±l3^-^y^-

r'~'

.<v) HIGH COURT OF CHHATTISGARH Sinale Bench:Honfble Shri Justice P.Sam Koshv Miscellaneous Aopeal No.92 of 2014 Bengal Nagpur Cotton Mills versus Nagar Palik Nigam, Rajnandgaon CT^ DsO M E N T Post for ^^ -12-2014 Sd/- P. Sam Koshy Judge i- ^

/'•^' -. ^ ,^1»-..-,.- 1 ^^.^:^ J;

'^ ^.^^ ^'ss^"

HIGH COURT OF CHHATTISGARH Single Bench:Hon'ble Shri Justice P.Sam Koshv Miscellaneous Appeal No.92 of 2014 Appellant Bengal Nagpur Cotton Mills 's^'

versus Nagar Palik Nigam, Rajnandgaon Respondent Appeal .-ui Ufil the Code of Civil ;3iriw Shri B.P.GuBta^/:<?ounsel for the a.ppesKSnt.

Shri Soura ||Aiajfe^^ for the ;lrgtf|>ondent .

iSW'U^Wa M E N T (De 1 ive ije|i)||onl o? ^ Decembe r, 2014) .

(1) presenttuj^sf^^ appeal preferred appellant :gSbaA^^^ dated 24-072014 passed by Additional District Judge (FTC), Rajnandgaon in Civil Appeal No.4/2010.

^ (2) facts leading filing present miscellaneous appeal appellant/plaintiff had filed case before Board Industrial Financial Reconstruction (in short ^the BIFR"), registered Case No.501/1993 matter decided thereafter 12-02-2002.

BIFR, vide its said judgment, permitted closure the plant with some conditions like relaxation

appellant/Mill payment interest damages on electricity, water and municipal accepted payment^ of due amount under these heads period 2001-0-2.

Subsequently, Municipal Corporation, ignoring passed l, BIFR, issued letter dated 13-09-2002 raising claim against with direction clear •%3-1i|aa-ii ai|fi,fteen days, failing which, approQgirf;!|fc^d Pro^e®UBJBW ^e initiated.

rffe'laemand period l^lTfill^o 2002-03.

A!ter on, D^p3^e^iX%0,Q4, again de»aoM, notice raised fQ^.ffl^jpi^mBnt of an amount Rs.l,16,53,956/-.%ytf':'^w:ff:aising both these demand notices, the appe||bgiM^fi|mpany gave specific reply intimating thaAj i^os^asTl^ BIFR dated 12-02-2002,?3fcAT©r^ an exemption from payment "^^ these dues, therefore, cannot be compelled to pay the tax.

^ (3) Later on, per directives BIFR, tenders were floated for auctioning of 5.81 acres land "as where basis".

Meanwhile, 1807 -2005, Municipal Corporation again issued notice demanding payment above-stated dues, also replied tried bring Municipal Corporation's notice about orders

passed the'BIFR provisions Sick Industries Companies Act (SICA).

Further, another notice issued Municipal Corporation, Rajnandgaon since thergdefault part for not depositing the demand statutory taxes payable appellant/coinpany Corporation further had intimated ap^l^gnt^gqmpany since demand^^t1||ag|t1iepncyfc'"":E)eirf|faia^^^d^,.the land of the a;i^;|j!%nt/Mill shall be got acquire|VIV^I['his notice ,.|&ted 18-07-20 Q^y|3,ed^j^^the filing dy,,||ie writ petition theT:gL|i||l!:|al|t/company.

Meanwhile, basis the'tt®|iiAgry floated earlier, land measuring 5.81 aaKg&^ggy,auctioned auctionpurchaser l^y. -||1^3:an-;,||>|:)ultry Farm, Rajnandgaon.

This action ytetofR ggit authorities INN-¥ demanding clearance property tax other statutory put challenge writ /_ petition filed registered Writ Petition No.5666/2005.

said writ petition was ultimately disposed of by the High 14-01-2009 and in the process, auctionsale confirmed favour highest bidder, i.e., M/s Indian Poultry Farm.

Against said disposal writ petition, Municipal Corporation filed review petition, being Review

^.

Petition No.13/2009.

review petition also finally stood disposed.

01-08-2009 whereby liberty granted Municipal Corporation take recourse appropriate "'forum recovery amount from appellant/National Textile Corporation (NTC) in accordance with law.

(4) Subsequently, respondent/Municipal CorporatiQn| |gi^l|ft|||g-|fr^i||B|||gecovery demand N11^ noti||ie|, 1k-'s;dated 13-09-2009S'«::' |?;iaB©unting aisii^00,18,364/-.

fltod-s demand notice-?|way|also duly fteplied t |;j,|^|teM3|3(r ycompany M-10-2009.

This repeated deffla:Et^|:oi|HSs)TOperty tax other being demanded by]ttia^|respondent/Corporation against appellant/q^|pi%;.::;^ challenge appellant/companySgggglSSWhe District Judge way an appeal under Section Chhattisgarh Municipal Corporation Act, (for short nthe Act, 1949//) .

registering said appeal taking cognizance same proceeded decide case -on merits said case still pending before District at Rajnandgaon.

said case registered Civil Appeal No.4/2010.

However, pending civil appeal before District Court, the Municipal Corporation again issued notice attachment property notice

/^'

^ t:i fl:--, V ^^ published 'a daily. newspaper..

Immediately getting information about paper-publication, wrote letter dated 21-072014 to Commissioner, "Municipal Corporation, Rajnandgaon objecting decision notice attachment appellant's property.

Immediately receiving notice attachment issued b^ gai, •«srtl8 aa-,... resPondent/'corPorationy ag)ip!a| lBiH|:Mympany'? ::lwmove® aBE|l ication before ^teBllJIP^strict pendinfts^ffyil Appeal ,y. 4/2010 under^0t(j^^,3^|^yles 2 :"|)r|fehe. Code Civil Procedu:E|,:%sg^pW an restrain against respQ|:||Bn^r payment demanded by ^||g|ll|g]ifc/Corporati^ Thereafter, respondentXCiG-rSeltmtli-QW also entered appearance and submitted thetpffftE^ 1^1 (5) However, below, vide impugned order, has rejected appellant's application under Order 39 Rules of the CPC for grant of temporary injunction holding has neither made out a prima facle good case nor balance convenience favour if an interim granted then respondent/Corporation would be put irreparable loss.

It this judgment has been assailed through instant miscellaneous

appeal under Order 43 Rule 1 (r) .the CPC (6) counsel for ^the submits f below has not properly appreciated contention put-forth by appellant/company before District Judge seeking temporary injunction.

According counsel appellant, it case where, fact, all three inggai|gfeLS^fiIi|;a||!Br^Nyff purpose of grant |||er|pdlrary injunction stood11 M^||Savour |aB|fti|11ant/ company bHKjhas been wrongli^^^^ terpreted sln different mi.jmm^^^^Sc^ prolilsions law.

According y%|j^ appellant, WVl'WtW prlma facie since|^i:||:y;hejf appellant/company sick industry and th^^fff^^'^ the trial under Section '

'iBiSSSB3Si^9 is already ' pending of the consideration, ought have restrained •"^ proceedings further with move attachment.

Similarly, -counsel further 4submits.

taking into consideration fact there clause BIFR itself exempting from making payment certain like property tax etc., it establishes fact the balance convenience also favour and, therefore, all practical purposes, should have been granted

advantage 'temporary injunction, failing which, would be put irreparable loss.

(7) counsel • respondent/Corporation opposes application grant temporary injunction submits there specific provision enabling . the Corporation raise demand appeal.

therefore, thei|mAc&L]!ianeous appeal l£aW-e^rffi|?<ejected.

iihfc3ilsel r@:Sppndent/Corporat£d%.^||ferred Ahe provisionsGGt|||c|^&l|:|.::149(6) the'Gct, 1949.

counsel ful3®|fcti||k through provisions of t|^ij^|t, wherein it is categorically ,f||v|iaga(|^ suit is specifically barlglisigKffther, counsel NNNI Corporation submits main grievance instant case attachment initiated Corporation not sustainable, therefore, according counsel respondent/Corporation since it an attachment under challenge then all practical purposes could not have pursued the remedy by filing appeal, rather according counsel respondent/Corporation fact appeal itself not maintainable inasmuch ought

have preferred'

an appeal under Section Act, before competent appellate authority constituted under Sedtion of the Act, 1949.

counsel respondent/Corporation referred Section Act, submitted that said section clearly envisages any person aggrieved notice demand under Section 174(1) Acfc, MBia,,Mfl q^,n prefer an appeal appell^tfS'

~consttWa^yAy^he'

Corporation.

• Ai|gl|>,3||ffl:ng to the '

co^nselm^/^or the ^Xspondent/Corpoft^a-or^ j i j||;tte^ in s tant appy.y^^ i s • not sustainable yadi>Ssi.^mjf fact Act, itself does^I Ig^fl^^ challenging action notice ,^iw^ffi3Qd law.

counsel VlJB:y^WB^p-ffnftLent/Corporation further submitted ^totipjH ^nAy reason has not availed .the remedy under Section Act, reason proviso clause Section Act, specifically envisages person challenging the notice under Section of the Act, 1949 has deposit entire amount and, therefore, avoid depositing assessed amount herein has preferred proceedings before District Judge not maintainable and, therefore, present miscellaneous appeal

also deserves to be rejected on this ground.

(8) counsel fqr respondent/Corporation t further, relying upon dated 12-02-2002 passed by BIFR, stated if entire perused it would clearly reflect there no exemption whatsoever granted from complying with statutory payable appel^^j(Stg:Ip|fe|ll|ian^|l|l|fipfore, statutory duestt»ptylfe>Te under the Act, 191^° ]gias',|Ap be complied •lllk 'Vt^.9 '

'

.

"^^^ li&y.

In addition/.Kfche High il|iQ earlier ftound of l^^(|^|:;fc<5^,j^^ Review sr Petition No. 13/2009 decide|:?:%g:?;1gKESs 8-8-2009, while deciding ],Jsaa-ttf |1 review petition, .

had categorically k^iraTCKat^^e liable settle in aifiigSISSy law by making payment same at request.

Hence, under given "^ facts and circumstances case, counsel respondent/Corporation prays rejection the miscellaneous appeal.

(9) Having considered rival contentions putforth counsel either side, this opinion if we see provisions Section Act, 1949, it would clearly reveal there statutory alternative efficacious remedy available

appellant 'having not availed the said remedy and at same time directly approaching law, the same may not be tenable at all.

(10) Further, if we peruse passed BIFR also, it would reveal only exemption has been provided by BIFR was waiving interest damages electricity, water munic^^tt;](1|y||^1j|||JT]-^|l^|||a|!n .the of, BIFBi.ia, (SS-ause F5 which is .a part |py,Ahe order dated siiliCT'2-2002 passed bys-te-he BIFR seen|;yfgwould show illthat onlY^y ^^mVmi^ interest damages thelvl||||||.l||pity, water municipal dues.

This itsel]itll,|sti'ablishes fact , that 3drf| |ai|:J'i:l:Sable pay principal amount towards 1rffffi!SgSfiB@yicity, water municipal dues.

said BIFR nowhere does envisage aspect being totally exempted from payment against these heads.

Whereas, contrary, if we read Clause F5, it clearly stipulates waiver only payment interest damages there no waiver depositing principal amount, therefore, the very factual aspect put-forth by the instant miscellaneous appeal waiver not acceptable waiver fact only interest damages not

princ'ipal amount otherwise becomes mandatory to be paid by the appellant/company. t

(11) Thus, from foregoing reasons, it can be safely held there no stay recovery the property tax etc.

even .at later stage obtained appellant/company.

Thus, cannot be given advantage total waiM^a-.lliffi water. and munii||i:L|||aIlldues.

As such, lmp||l^ri^A order passed lll^ below(^Bnnot be held to B^ law arbitrary.

(12) With afo'^®®|;a.^j;||bservations, this opinion •tMB^^W^^ no substantial ground raised appea;ianfc not complying with notice issued by¥rte|s:» ,Mg|l|icipal Corporation calling interference by High passed below or warranting any interference with impugned order.

Therefore, instant miscellaneous appeal being devoid merit, same rejected.

It also made clear interim order granted by this Court earlier shall also stand vacated.

Sd/- p.SamKoshy Judge