SUPREME COURT OF INDIA

Before:- S.P. Bharucha, N. Santosh Hedge and Y.K. Sabhaewal, JJ.

CA No. 11528 of 1996. D/d. 15.3.2001.

State Of Madhya Pradesh And Anr. - Appellant

Versus

State Bank Of Indore And Ors - Respondent

A. Madhya Pradesh General Sales Tax Act, 1958, Section 33C - Statutory first charge created by Section 33C of 1958, Act in favour of State in respect of sales tax dues of the second respondent (Who had taken loan from first respondent/Bank) prevailed over the charge created in favour of Bank in respect of loan taken by him- Such effect does not involve any question of retrospectivity.

[Para 5]

B. Civil Procedure Code, 1908, Section 96(1) - Appeal dismissed by High Court on the ground that it challenged the judgment of the trial Court and not the decree - Held - Such dismissal not proper - All that was required to be done in a case like that was to remove the technicality by permitting the amendment of memo of appeal.

[Para 6]

Cases Referred :-

Dena Bank v. Bhikhabhai Prabhudas Parekh and Co.

JUDGMENT

S.P. Bharucha, J. - The judgment and order under challenge was passed by a Division Bench of the High Court of Madhya Pradesh at Indore. It dismissed the first appeal filed by the present appellant, the State of Madhya Pradesh.

2. The second respondent had obtained from the first respondent-bank a term loan of rupees forty thousand on September 5, 1974. In this behalf, the second respondent had executed a promissory note and had pledged to the bank certain machinery. A second loan was taken on January 23, 1979, and a third loan on January 25, 1979.

3. In the meantime, with effect from January 19, 1976, Section 33C was inserted into the M. P. General Sales Tax Act, 1958. It reads thus :

"Tax to be first charge.-- Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax and/or penalty, if any, payable by a dealer or other person under this Act shall be a first charge on the property of the dealer of such person."

4. In respect of the second respondent's sales tax dues, the State claimed a first charge under Section 33C upon the machinery in priority to the charge held by the bank. The trial court and the High Court did not accept the State's submission in this behalf. In the view of the High Court, the bank's charge on the machinery was created on September 5, 1974, that is, prior to the enforcement of Section 33C, and the subsequent loans taken on January 23, 1979, and January 25, 1979, did not alter the position in favour of the State. In its view, "the charge created once remained valid and operative till repayment of the loan as borrowed". The High Court also took the view that the appeal before it was flawed because it challenge the judgment of the trial court and not its decree.

5. Section 33C creates a statutory first charge that prevails over any charge that may be in existence. Therefore, the charge thereby created in favour of the State in respect of the sales tax dues of the second respondent prevailed over the charge created in favour of the bank in respect of the loan taken by the second respondent. There is no question of retrospectivity here, as, on the date when it was introduced, Section 33C operated in respect of all charges that were then in force and gave sales tax dues precedence over them. This position in law is discussed in detail in the judgment of this court in Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. .

6. We are also of the view that the High Court was in error in dismissing the appeal before it on the ground that what had been challenged therein was the judgment of the trial court and not its decree. All that was required to be done in a case like that was to remove the technicality by permitting the amendment of the memo of appeal.

7. In the circumstances, the civil appeal is allowed and the judgment and order under appeal is set aside.

8. No order as to costs.

Appeal allowed.