AshwIn S. Mehta and anr. Vs. Custodian and ors. - Court Judgment

Excerpt:
civil - attachment of property - de-notification - special courts (trial of offences relating to transaction in securities) act 1992 (act) - appellants were notified persons under the act - whether the appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the act - held, there cannot be any doubt whatsoever that they being notified persons, all their properties would be deemed to be automatically attached as a consequent thereto - for the said purpose, it is not necessary that they should be accused of commission of an offence as such. company - lifting of corporate veil - whether individual liabilities of the appellants ought to have been separately considered by the special court as not being a part of harshad mehta group - held, the principle of lifting the corporate veil, however, ipso facto would not apply to the individuals - the custodian in a case of this nature may, however, show that the transactions entered into apparently by harshad mehta were intimately connected with acquisition of properties in the name of others - a benami transaction can indisputably be a subject matter of a lis in terms of section 4(1) of the act - as and when such a question is raised, the same may have to be dealt with by the special court appropriately property - commercial property - auction sale - creation of third party right - held, in any event, ordinarily, a bona fide purchaser for value in an action sale is treated differently than a decree holder purchasing such properties - in the former event, even if such a decree is set aside, the interest of the bona fide purchaser in an auction sale is saved.property - residential sale - whether the residential properties should have been released from attachment - held, admittedly, the flats had been sold on the basis of joint liabilities of appellants together with harshad mehta and other companies as a group - however, the liabilities of the appellants, in view of our findings aforementioned, are required to be considered afresh by the learned judge, special court taxation - liability - whether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding - held, if the liabilities of the individual entities are not treated as that of the group, for one reason or the other, indisputably, liability of those who have nothing to do with the dealings of harshad mehta either in their individual capacities or as directors of some company or otherwise must be dealt with separately - in any view of the matter, the learned judge, special court having not dealt with the question as regards the mode and manner of disbursements of the amount so far as the tax liabilities of the appellants are concerned elaborately, the same requires fresh determination in the light of the decision of this court in harshad shantilal mehta (supra) - s.b. sinha, j.1. these appeals are directed against a judgment and order dated 17.10.2003 passed by the special court constituted under the special courts (trial of offences relating to transactions in securities) act, 1992 (for short 'the act') in misc. application nos. 41 of 1999, 4 of 2001, 265, 266 and 275 of 2003.background facts2. the appellants herein who are related to one harshad s. mehta (since deceased) purchased nine residential flats in a building called madhuli apartments in worli area of mumbai. the family of the appellants consists of four brothers, their wives, children and their widowed mother. the eldest among them, harshad s. mehta, has since expired. the said nine flats, it is said, were merged and redesigned for joint living of the entire family. 3. the appellants herein and the said late harshad mehta were persons notified in terms of the act which was enacted to provide for the establishment of a special court for the trial of offences relating to transactions in securities and for matters connected therewith. in terms of the provisions of the act, along with late harshad mehta, the custodian had notified 29 entities in terms of section 3 of the act, comprising three of his younger brothers, wife of late harshad mehta, wives of two of his younger brothers and other corporate entities, a partnership firm and three hufs. however, out of the said 29 entitles, only late harshad mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. 4. the properties of late harshad mehta and the appellants, herein being notified persons stood attached in terms of the provisions of the act. proceedings before the special court5. before the learned special court, the parties herein filed several applications which can be sub-divided in three categories, as would be noticed shortly hereinafter. it is not in dispute that the learned special court on or about 3.08.1993 issued directions in various proceedings before it appointing auditors to prepare and audit the books of accounts of all notified persons for the period 1.4.1990 and 8.06.1992, i.e., the date of the notification. three firms of chartered accountants were appointed to prepare statement of accounts and liabilities of each of the appellants, herein.6. a chartered accountants' firm was appointed by the learned special judge by an order dated 17.9.2003 to represent all notified entities in the family of late harshad mehta for the purpose of ascertaining their tax liabilities.7. we may, at this juncture, notice the nature of the applications filed by the parties, herein before the learned special court:(i) on 26.04.1999, the custodian filed an application being misc. application no. 41 of 1999 seeking permission of the special court for sale of residential premises commonly known as madhuli of eight notified entities.(ii) a misc. application being 4 of 2001 was filed by the custodian praying for the sale of commercial premises.(iii) the appellants herein filed several misc. applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1.4.1991 and the same had no nexus with any illegal transactions in securities. alternatively, it was prayed that since their asset base was greater than genuine liabilities, the said residential premises should be released from attachment. impugned