MAMU KOYA Vs. ASST COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THE plaintiffs in a suit for injunction against the respondents, Government Officers to restrain them from realising the amount made mention of in the demand notice under Kerala Revenue Recovery Act are the appellants in this case. Admittedly the revenue recovery proceedings were initiated to realise the sales tax arrears defaulted to be paid by a registered firm in which the plaintiffs were admittedly partners. According to the plaintiffs they had retired from the partnership with effect from 1. 4. 1985 as revealed by Ext. Al and a new partnership firm has been constituted by the remaining partners, defendants 4 and 5. THErefore, they were not liable to be proceeded under the Revenue Recovery Act to realise the sales tax arrears. But such a suit is totally barred in terms of S. 51 of the Kerala General Sales Tax act. S. 51 (1) of the said Act provides as follows "no suit, prosecution or other proceeding shall lie against any officer or servant of the Government for any act done or purporting to be done under this Act without the previous sanction of the Government&quot Admittedly no previous sanction had been obtained by the plaintiffs. THE act complained of is the revenue recovery proceedings initiated against them to recover the tax arrears. S. 23 (2) of the said Act provides that any tax assessed or any other amount due under the Act from a dealer or other person may, without prejudice to any other mode of recovery be recovered as if it were an arrear of land revenue. Arrears of land revenue are recovered in terms of the Kerala Revenue Recovery Act. THErefore, the revenue recovery proceedings impugned in the suit was an act taken in terms of S. 23 of the Act and a suit against a Government Officer for any act purported to be done under the Act is barred by the provisions extracted above. So the suit itself was not maintainable under the said provision.

(2.) MOREOVER the act complained of was of the date 1. 2. 1989 where as the suit was filed on 2. 12. 1989. S. 52 provides that no suit shall be instituted in respect of any act done beyond the period of six months from the date of the act complained of. So the suit itself is beyond the period provided for under S. 52 of the said Act.

(3.) IT is contended that injunction has been granted against the recovery proceedings subject to the condition of providing bank guarantee by the plaintiffs for the amount demanded. The plaintiffs provided the bank guarantee and enjoyed the order of injunction. IT is submitted that as the suit is now dismissed, the bank guarantee be released rather than allowing the defendants to proceed against the bank guarantee. The prayer cannot be granted because the trial court applied its discretion to grant an injunction on condition of providing bank guarantee. After enjoying the injunction complying with the condition of providing bank guarantee, on dismissal of the suit far later, it cannot be contended that the bank guarantee shall not be enforced. If the injunction had not been obtained on such conditions the defendants could have realised the amount far earlier. In such circumstances the defendants cannot be disabled to realise the bank guarantee. The defendants are free to realise the bank guarantee. Appeal fails and is dismissed. No costs. . .