BHAGEANDAS LAXMICHAND SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the order dated 28th February, 2008, rejecting the Notice of Motion taken out by the plaintiffs-appellants praying for interim relief of injunction restraining the Union of India, the Commissioner of Customs (Export Promotion) and the Assistant Commissioner of Customs, Tax Recovery Cell, (Export), from acting in any manner in furtherance to the recovery certificate and the order of attachment dated 25th April, 2007.

(2.) The appellants, who claim to be the executors of the Will of Smt. Kusumben Virchand Shah dated 4th May, 2003, were granted Letters of Administration on 4th May, 2007. The Will provided that all her movables and immovable properties including the property at Mazgaon, after the payment of all taxes, will be distributed amongst the members of the family of her sons as per the ratio stated in the Will. In the year 1988 a suit was filed being Suit No. 328 of 1988 wherein, inter alia, the deceased testatrix Kusumben was impleaded as seventh defendant. Consent terms were entered into between the parties. As per Clause 3 of the said consent terms, it was envisaged that the three flats reflected therein would be sold by a private treaty towards the realisation of the decretal debt of Rs. 3.35 crores outstanding in the name of the appellants. The properties were agreed to be handed over and would vest in deceased Kusumben. As per Clause 7 of the said consent terms, all the remaining properties and assets of the partnership firm were to belong to deceased Kusumben.

(3.) The basic argument raised on behalf of the appellants, while impugning tire order dated 28th February, 2008, is that the partnership firm and its partners were not defaulters within the meaning of the provisions of Customs Act, 1962, and as such no properties could be attached. Further, it is stated that the properties had unequivocally vested in the deceased who had bequeathed the properties vide her Will dated 4th May, 2003 to the appellants and as such the properties had come to their hands without any charge. These contentions were rejected by the learned single Judge after noticing the facts in great detail and for the following reasons: