BANSAL COMMODITIES Vs. RAKESH KUMAR AGGARWAL

JUDGEMENT

(1.) IA No.7752/2004 This is an application by the plaintiff under Section 80(2) of the Code of Civil Procedure. The plaintiff/applicant contended that defendant No.2 is the Income Tax authority and for the purpose of filing the suit a notice under Section 80 of the Code of Civil Procedure is required to be served. The applicant contended that by order dated 20.5.2004 plaintiff was granted time to file the present suit and was also granted stay for the said period of eight weeks from the date of said order. As the period of eight weeks was expiring on 15th /16th July, 2004 and the plaintiff had to obtain the injunction that amounts lying with the Income Tax Authorities be not paid to defendant No.1, the plaintiff filed the suit without giving notice under Section 80 of the Code of Civil Procedure.

(2.) The plaintiff/applicant in the circumstances has prayed for exemption from serving the notice under Section 80 of the Code of Civil Procedure on defendant No.2 before filing the present suit. The defendant No.2/non-applicant has contended that no suit is maintainable in a Civil Court under Section 293 of the Income Tax Act and, therefore, the plaintiff/applicant is not entitled for exemption under Section 80(2) of the Code of Civil Procedure. The application is also opposed on the ground that no urgent and immediate relief need be granted to the plaintiff. Whether any amount is refundable to Mr. R.K.Agarwal or he is liable to pay Rs.1,39,91,585 as per revised order of settlement Commissioner dated 26th March, 2004 The defendant no.2 in reply to another application had also contended that as far as the position of the defendant no.2 is concerned, its position in the civil proceedings is basically that of a garnishee and the only substantial question/issue is whether refund, if any, should be given to Mr.R.K.Agarwal or whether M/s Bansal Commodities was entitled to get a direction that refund should be made to them as Mr.R.K.Agarwal was indebted/liable to pay Rs.49.03 lacs. There has been protracted litigation between the plaintiff and defendant No.1 pursuant to seizure of the drafts given by defendant No.1 to plaintiff in discharge of its alleged liability. Diverse orders have been passed from time to time. Ultimately in a writ petition where the Income Tax department, defendant No.2 was also a party it was held that since the disputes between the defendant No.1 and the plaintiff involves various disputed questions of facts, therefore, the disputes be decided by a Civil Court and liberty was granted to the plaintiff to file the suit.

(3.) The disputes are between the plaintiff and defendant no.1 as to who is entitled for the amounts of drafts which were seized by the Income Tax Department in a raid on defendant no.1, which amounts were subsequently realized from the bank. The dispute now is as to who is entitled to the said amount from the Income Tax Department. No relief as such is claimed against the Income Tax Authorities. Probably for this reason the defendant No.2 in the writ petition did not raise any objection that the disputed questions of facts between the plaintiff and the defendant no.1 be decided by a Civil Court. Nothing has been claimed against the Income Tax Authorities except as to who will be entitled to the amount of seized drafts lying with the Income Tax Authorities. Section 293 of the Income Tax Act is reproduced for reference:- "No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act; and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act." Thus dispute raised in the present application is only whether the plaintiff is entitled for exemption under section 80 of the Code of Civil Procedure in the facts and circumstances. As the main dispute is between the plaintiff and the defendant no.1 as to who would be entitled for the amount lying with the Income Tax Authorities, who has to comply with the adjudication to be done by the Court, it will be appropriate to grant the plaintiff exemption under section 80(2) of the Code of Civil Procedure in the facts and circumstances of the case. Therefore, the application is allowed and the plaintiff is granted exemption as prayed for. IA No.7753/2004