Holding

Municipal tax arrears are not an encumbrance on the property; the municipality is an unsecured creditor and the purchaser is not liable for tax dues incurred before the sale.

Summary

Al Champdany Industries Limited purchased the assets of a company in liquidation. After the sale was confirmed, Bhatpara Municipality claimed arrears of property tax for periods before the sale and sought payment from the purchaser. The High Court held that the sale terms "as is where is" imposed a duty on the buyer to investigate encumbrances, treating the tax arrears as an encumbrance and making the purchaser liable. The Supreme Court examined the nature of municipal tax under the Companies Act, 1956 and the Transfer of Property Act, 1882, and held that such tax dues are a personal liability of the liquidated company, not an encumbrance on the property, and that the municipality is an unsecured creditor without preferential status. Consequently, the purchaser is not liable for tax arrears prior to the sale, and the municipality's claim must be filed with the liquidator and stand in the normal queue of creditors. The Court set aside the High Court judgment and allowed the appeal.

Issues considered

The nature of municipal property tax arrears: whether they constitute an encumbrance on immovable property under Section 55 of the Transfer of Property Act.
Whether a purchaser of assets in a liquidation sale is liable for tax arrears incurred before the date of sale.
Whether the municipality, as an unsecured creditor, can claim priority over the sale proceeds under Sections 529, 529A and 530 of the Companies Act, 1956.
The effect of the "as is where is" and "whatever there is" terms on the purchaser's duty to investigate encumbrances.
Whether municipal tax dues qualify as a "crown debt" or a preferential charge.
The requirement for filing claims against a liquidated company before the official liquidator.

Legislation cited

Bombay Municipal Corporation Acts. 141
Companies Act, 1956s. 456, s. 457, s. 528, s. 529, s. 529A, s. 530
Provincial Insolvency Act, 1920s. 61
Transfer of Property Act, 1882s. 100, s. 55(1)(g)

Subjects

encumbrancemunicipal taxliquidationpurchaser liabilityCompanies ActTransfer of Property Actunsecured creditorpriority of claimssale of assetscrown debt

Judgment

[2009] 2 S.C.R. 705

Al CHAMPDANY INDUSTRIES LIMITED A
V.
THE OFFICIAL LIQUIDATOR & ANR.
Civil Appeal No. 1118 of 2009
FEBRUARY 19, 2009
B
[ S.B. SINHA AND ASOK KUMAR GANGULY, JJ.]
Companies Act, 1956 - ss. 529, 529A and 530 - Sale of
assets of company in liquidation - Claim of arrears of property .
tax by Municipality from purchaser for period prior to date of
purchase - High Court holding that tax payable to Municipality C
was encumbrance and it could not avoid payment for not
making enquiry - Held: Not sustainable - Municipality was
unsecured creditor and not preferential creditor - Dues in
relation to municipal tax does not create any encumbrance or
charge on property - It is considered to be a personal liability D
- Fact that company went in liquidation was given due publicity
- Municipality did not file its claim before official liquidator
noi stood in queue to get the same recovered/adjusted from
sale proceeds - More so, advertisement did not specify that
all public charges have to be paid - Transfer of Property Act, E
1882- s. 55.
Words and phrases: 'Encumbrance' - Meaning of.
A company went in liquidation. Appellant purchased
..:t: the assets of the company. The company judge confirmed F

• the sale. Thereafter, respondent-Municipality served a
notice to appellant claiming payment of arrears of property
tax. Appellant took out chambers summons for
clarification that sale confirmed in their favour would make
them liable for payment of property tax only on and from G
the date of confirmation of sale and not for any period
prior thereto. Both the Single Judge as ·also the Division
Bench of the High Court held that since the inventory was
made on "as is where is and wh~t~yer there is" basis, the
705 H
706 SUPREME COURT REPORTS [2009] 2 S.C.R.

A offerer was to satisfy themselves in regard to the physical
inspection of the assets/properties as to the title,
encumbrance etc. of the assets of the company in
liquidation. Hence the present appeal.
Allowing the appeal, the Court
B
HELD: 1.1 All claims against the companies were
required to be filed before the liquidator until the property
was sold as provided for under s. 457 of the Companies
Act. .In terms of s. 456 thereof once an order for winding
up is made the liquidator has to take 'into custody the
C properties; effects and actionable claims to which the
company is or appears to be entitled. S. 528 provides that
all debts payable on a contingency and all claims against
the company, present or future are admissible to proof
against the company. S. 529 provides for the same rule
D as in force for the time being under the law of insolvency
with respect to the estates of person adjudged insolvent.
Section 530 provides for certain prforities to secured
creditors· and other unsecured creditors. Once the
property is sold, the assets of the company are required
E to be distributed to the creditors in order of preference.
Companies Act or any other law does not impose· any
additional' obligation upon the purchaser to make an
enquiry with regard to the liabilities of the companies
other than thos~ _y1h.if::!l would impede its value. [Paras 15
F and 20] [ 717-8-E; 713; 714-H]
1.2 In terms of the s.55(1) (g) of the Transfer of
Property Act, the seller is bound to pay all public charges
due in respect of the property upto the date of sale, when
a property is sold in auction. Section 55 refers to a contract
G only. Unless there is a contract to the contrary, the rights
and obligations of the parties to a sale would be as
indicated ins. 55. Such·a contract to the con~ra..Y'inust be
express and not implied, as a result whereof the'' meaning
of term encumbrance would be expand~~· [~ara 19]
H [716-F] ..

..
Al CHAMPDANY INDUSTRIES LIMITED V. 707
THE OFFICIAL LIQUIDATOR & ANR.

,.,_, 1.3 The terms and conditions of the sale must be read A
as a whole. It must be given a purposive meaning. The
word 'encumbrance' in relation to the word 'immovable
property' carries a distinct meaning. It ordinarily cannot
be assigned a genera and/ or dictionary meaning.
Encumbrance must be capable of being found out either B
on inspection of the land or the office of Registrar or a
statutory authority. A charge, burden or any other thing
...(
• which impairs the use of the land or depreciates in its value
may be a mortgage or a deed of trust or a lien or an
easement. Encumbrance thus must be a charge on the c
property. It 'must run with the property. If by a reason of
the statute no such burden on the title which diminishes
the value of the land is created, it shall not constitute any
encumbrance. [Para 12 and 13] [712-G; 713-E; 712-H;
713-A]
D
Stroud's Judicial Dictionary of Words and Phrases 5th
,>
edition; Supreme Court on Words and Phrases; Advanced Law
Lexicon; Black's Law Dictionary - referred to.
2.1 The Company went in liquidation. It was directed
to be wound up. The official liquidator indisputably took E
charge of both movable and immovable assets of the
company. The facts that the company went in liquidation
was given due publicity. Respondent-Municipality did not
>-
file its claim before the official liquidator. It did not stand
in queue to get the same recovered and/or adjusted from F
the sale proceeds. The manner in which the claim of a
creditor in respect of the dues of the company in
liquidation is to be realized has been laid down in ss. 529
~nd 529A. Dues in relation to the Municipal Tax in terms
of the provisions of the said Act do not create any
G
.(
encumbrance on the property. It does not create any
I charge. It is considered to be a personal liability. [Paras 9
and 10] [711-E-F; 711-G]
· 2.2 If the property tax was merely a statutory dues
without creating any encumbrance on the property which H

t
708 SUPREME COURT REPORTS [2009] 2 S.C.R.

A had cast a duty upon all the auction purchasers to make
an investigation, It would mean that he must try to find
out all the liabilities of the company in liquidation in their
entirety. Respondent-Municipality was a unsecured
creditor and not a preferential creditor. In that capacity it
, 8 cannot stand on a higher footing than an ordinary r
uns_ecured creditor who is required to stand in queue with
all others similarly situated for the purpose of realization
of their dues from the sale proceeds. The advertisement
did not specify that all public charges have to be paid. As '
)...

C the respondent-Municipality was not a secured creditor,
the impugned judgment cannot be sustained. [Paras 14, ·•
19 and 20] [ 713-G; 716-H; 717-E]
2.3 Dues of the Municipality would also not even ..
t
otherwise come within the purview of the crown debt.
Ev~n a crown debt could be discharged only after the
D secured. ~reditors stand discharged. [Para 22] [ 718-D]
Ahmedabad Municipality vs. Haji Abdul AIR 1971 SC "' .
'I

1201; lsha Marbles vs. Bihar State Electricity Board and Anr.
1995 (2) SCC 658; Union of India and Ors. vs. Sicom Ldtd.
E and Anr. 2009 (1) SCALE 10 - referred to.
Case Law Reference
AIR 1971 SC 1201 Referred to. Para 15
1995 (2) SCC 648 Referred to. Para 21
F· 2009 (1) SCALE 10 Referred to. Para 23
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1118
of 2009
From the Judgement and Order dated 15.05.2008 of the
High Court of Calcutta in ACO No. 25 of 2008.
G
Sunil Kumar, Abhijeet Guha Roy, Abhay Prakash Sahay,
Awanish Sinha, Himanshu Shekhar for the Appellant.
· Sanjay K. Ghosh, Rupali S. Ghosh, Avijit Bhattacharjee,
Sibajit Sen, Shiv Shankar Banerjee, Rauf Rahim, Y. Bansal,
H Brijesh Kumar for the Respondent.
Al CHAMPDANY INDUSTRIES LIMITED V. 709
THE OFFICIAL LIQUIDATOR & ANR.

The Judgement of the Court was delivered by A
S.B. SINHA, J.
1. Leave granted.
2. Wool-Combers of India Limited (the company) went in
liquidation. Appellant purchased assets of the company in 8
liquidation in a court sale for a consolidated sum of
Rs. 7 ,03,00,000/-. Sale was confirmed by the learned Company
•
./.
th
Judge by an Order dated 15 September, 2006 .
3. Appellant was served with a notice dated 15-02-2007 C .
by Bhatpara Municipality claiming payment of arrears of property
tax amounting to Rs.4 7,59,597 .19/- for the period from 1991-
1992 and 2006-2007, stating :
"that before adopting the said stringent measure for_,,
realizing the arrear property tax once again give you and , o.
opportunity to pay all arrear property tax in respect of the
said holdings being 1/, West Ghoshpara Road, Ward No.
12, amounting to Rs.47,59,597.19/-plus statutory interest
within seven days from the receipt thereof."
4. Appellant contends that it has no liability to pay the said E
dues and the same has to be adjusted from the sale proceeds.
It is furthermore stated that on and from the date of purchase it
had paid all municipal rates and taxes subsequent to the date.·
of sale.
Appellant on receipt of the said notice took out a Chamber F
Summons praying, inter alia, for the following reliefs :
"(a) Necessary clarification be made that Sale confirmed
in favour of applicant by order dated fsth September,
2006 would make the applicant liable for payment of G
property tax only on and from the date of confirmation
j of sale i.e. 15th September, 2006 and not for any
period prior thereto;
(b) Order dated 15th September, 2006 be suitably
modified and/or clarified in terms of prayers above; H
710 SUPREME COURT REPORTS [2009] 2 S.C.R.

A . (c) Injunction restraining the respondent no. 2 from
~
claiming any alleged arrear property tax for period
prior to 15th September, 2006;
(d) Direction be given to the respondent no. 2 lodge its
claim· before the Official Liquidator for any alleged
B claim on account of property tax for period prior to
15th September, 2006.

(e) Injunction restraining the respondent no. 2 from giving
any effect and/or further effect to the notice dated
••
-~·

15th February, 2007 and 6th March, 2007 being
c Annexures. "E" and "G" respectively to the affidavit in
support of this summons;
(f) Ad-interim orders in terms of prayers above;
(g) Costs of and/or incidental to this application be paid
D by the respondent no. 2; ;>
·'
(h) Such further and/or other order or orders as this
..
Hon'ble Court may deem fit and proper."
. th
5. By reason of an order dated 7 February, 2008, the
E said application has been dismissed, stating :
"Having considered the submissions of the parties the
terms "as is where is basis and whatever there is basis"
signifies, the condition, quality and the quantity in which ~

the assets sold, exists. It does not take into account the ""
F liabilities attached to the assets sold. The terms and
conditions of sale, however, called upon the bidders to
satisfy themselves regarding title and encumbrance
attached to the said asset. Encumbrance would include
the liability attached to the asset including the tax payable.
G Therefore, it was incumbent upon the purchaser to make
enquiry regarding liabilities (to be read as encumbrance) )._

attached to the asset before making the offer, The tax \
payable to the municipality is one such encumbrance and
for not making enquiry the petitioner cannot avoid
H payment."
Al CHAMPDANY INDUSTRIES LIMITED V. 711
THE OFFICIAL LIQUIDATOR & ANR. [S.B. SINHA, J.]

...."--°', 6. An intra court appeal preferred thereagainst has been A
dismissed by a Division Bench of the said court.
7. Mr. Sunil Kumar, learned senior counsel, in support of
this appeal, would contend that a purchaser is not liable to pay
the property tax prior to the date of purchase and remedy of the
B
respondent municipality, if any, was to have its claim satisfied
from the sale proceeds in terms of Sections 529 and 529A of
•
..(
the Companies Act, 1956 .

8. Mr. Sibaji Sen, learned senior counsel appearing on
behalf of the respondent-Municipal Corporation, on the other c
hand, would draw our attention to the advertisement for sale to
contend that the appellant had a duty to make an enquiry in
regard to the Company's encumbrance as also in terms of the
provisions of Sections 55(1) and 55(2)(g) of the Transfer of
Property Act. D
• The learned counsel appearing on behalf of the official
liquidator would support the said contention.
9. The company went in liquidation. It was directed to be
wound up. The official liquidator indisputably took charge of both E
movable and immovable assets of the company. The fact that .
the company went in liquidation was given due publicity.
... Respondent-Municipality did not file its claim before the official
,. liquidator. It did not stand in queue to get the same recovered
and/or adjusted from the sale proceeds.
F
Indisputably the manner in which the claim of a creditor in
respect of the dues of the company in liquidation is to be realized
has been laid-dowh in Sections 529 and 529A of the Companies
Act, 1956 ..
.G
-i <
10. Dues in relation to the Municipal Tax in terms of the
" provisions of the said Act do not create any encumbrance on
the property. It does not create any charge. It is considered to
be a personal liability. On the aforementioned premise, we have
to construe the terms and conditions of sale. It reads as under:
H

.
712 SUPREME COURT REPORTS [2009] 2 S.C.R.

A "1. The sale will be held as per inventory made by the
Valuer on "As is Where is And Whatever There is" basis
and subject to confirmation by the Hon'ble High Court at
Calcutta. The Official Liquidator shall not provide any
guarantee and/or warranty as to the quality, quantity or
B specific~tion of the assets sold. The Offerers/Bidders are
to satisfy themselves in this regard after physical
inspection of the assets/properties as to the title,
encumbrance, area, boundary, measurement, description
· etc. of the Company (in Liquidation) and the purchasers
c will be deemed to offer with full knowledge as to the defects,
if any in the descriptions, quality or quantity of the assets
sold. The Official Liquidator shall not entertain any
complaint in this regard after the sale is over. Any mistake
in the notice inviting tender shall not vitiate the sale."
D. 11. Both the learned Single Judge as also the Division
r Bench of the High Court held that having regard to the fact that
an inventory was made on "as is where is and whatever there
is" basis and furthermore in view of the fact that a duty was cast
upon the offerer to satisfy themselves in regard to the physical
E inspection of the assets/properties as to the title, encumbrance,
area, boundary, measurement, description etc. of the assets of
the company in liquidation and the purchaser would be deemed ·
to be offerin~ his prices therefor with full knowledge as to the
defects containing the descriptions, quality or quantity of the
F assets sold, the appellant was bound to make an investigation
in regard to the liabilities of the comP.any in liquidation.
12. The terms and conditions of the sale must be read as
a whoie. It must be given a purposive meaning.
G The word 'encumbrance' in relation to the word 'immovable
property' carries a distinct meaning. It ordinarily cannot be
assigned a general and/or dictionary meaning. We may however
notice some dictionary meanings of the said word as reliance
thereupon has been placed by Mr. Sibaji Sen.
H In Stroud's Judicial Dictionary of Words and Phrases 5th
Al CHAMPDANY INDUSTRIES LIMITED V. 713
THE OFFICIAL LIQUIDATOR & ANR. [S.B. SINHA, J.]

~ Edition Encumbrance is defined as "being, 'a claim, lien, or A
liability, attached to property'; and this definition is wide enough
to cover the plaintiff's claim," which was, as assignee for valu~
of a reversionary interest, against a pers._on coming in under a
subsequent title."
In Supreme Court on Words and Phrases it is stated that 8

..
~
"the word 'encumbrance' means a burden or charge upon
property or a claim or lien upon an estate or on the land. "
In Advanced Law Lexicon Encumbrance is defined as "an
infringement of another's right or intrusion on another's c e
property"
In Black's La_w Dictionary Encumbrance is defined as "any:
right to, or interest in, land which may subsist in another to
diminution of its value, but consistent with the passing of the
-(
fee." D
...
13. Encumbrance, therefore, must be capable of being
found out either on inspection of the land or the office of Registrar
or a statutory authority. A charge, burden or any other thing which
impairl> the use of the land or depreciates in its value may be a
E
mortgage or a deed of trust or a lien or an easement.
Encumbrance thus must be a charge on the property. It must run
with the property. If by a reason of the statute no such burden on
-+ the title which diminishes the value of the land js created, it shalJ
-;
not constitute any encumbrance.
F
14. If the property tax was merely a statutory dues without
creating any encumbrance on the property which had cast a
duty upon all the auction purchasers to make an investigation, it
would mean that he must try to find out all the liabilities of the
company in liquidation in their entirety. Respondent-Municipality
G
,
-{ was an unsecured creditor. In that capacity it cannot stand on a
higher footing than an ordinary unsecured creditor who is ,
required to stand in queue with all others similarly situated for
~ the purpose of realization of their dues from the sale proceeds.

15. Compa~ies Act or any other law does not impose any H
714 SUPREME COURT REPORTS [2009) 2 S.C.R.

A additional obligation upon the purchaser to make an enquiry ~

with regard to the liabilities of the companies other than those
which would impede its value.
Reliance has been placed by Mr. Sen on a decision
reported in Ahmedabad Municipality Vs. Haji Abdul [AIR 1971
B SC 1201] wherein it was held :
''The plaintiff purchased the property in November, 1954
and in our opinion it could not have reasonably been
...
>-
expected by him that the receivers would not have paid to . ~

c the municipal corporation, since 1949 the taxes and other
dues which were charged on this property by statute.
According to Section 61 of the Provincial Insolvency Act,
1920 the debts due to a local authority are given priority,
being bracketed along with the debts due to the State."
D We may notice that Section 141 of the Bombay Provincial >--

Municipal Corporation Act provides that the property taxes to +-
be a first charge on the premlse for which they are assessed. It
is in that view of the matter Section 100 of the Transfer of
Property Act was found to be capable of being invoked therein,
which reads as under:. ,
E
"100.Charges - Where immoveable property of one person
is by act of parties or operation of law made security for
the payment of money to another, and the transaction does +·
not· amount to a mortgage, the latter person is said to •
F have a charge on the property; and all the provisions
herein before con~ained which apply to a simple mortgage
shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee
on the trust-property for expenses properly incurred in the
G
execution of his trust, and, save as otherwise expressly
provided by any law for the time being in force, no charge ·-...
shall be enforced against any property in the hands of a
person to whom such property has been transferred for ~
consideration and without notice of the charge."
H
Al CHAMPDANY INDUSTRIES LIMITED V. 715
THE OFFICIAL LIQUIDATOR & ANR. [S.B. SINHA, J.]

16. There cannot, thus, be any doubt or dispute that a A
provision of law must expressly provide for an enforcement of a
charge against the property in the hands of the transferee for
value without notice to the charge and not merely create a charge.
17. In Ahemdabad Municipality itself it was held:
B
"According to the submission it is not necessary for the
saving provision to expressly provide for the enforceability
of the charge against the property in the hands of a
transferee for consideration without notice of the charge.
This submission is unacceptable because, as already c
observed, what is enacted in the second half of Section
100 of Transfer of Property Act is the general prohibition
that no charge shall be enforced against any property in
the hands of a transferee for consideration without notice
c;,~of the charge and the exception to this general rule must
0
be expressly provided by law. The real core of the saving
provision of law must be not mere enforceability of the
charge against the property charged but enforceability of
the charge against the said property in the hands of a
transferee for consideration without notice of the charge. E
Section 141 of the Bombay Municipal Act is clearly not
such a provision. The second contention accordingly fails
.and is repelled."

It was further more held :

"Reliance was next placed on a Full Bench decision of the F
Allahabad High Court in Nawal Kishore V. The Municipal
Board, Agra, ILR (1943). All 453 =(AIR 1943All 115 (FB)).
According to this decision the question of constructive
notice is a question offact which falls to be determined on
the evidence and circumstances of each case. But that G
Court felt that there was a principle on which question of
constructive notice could rest, that principle being that all
intending purchasers of the property in municipal areas
where the property is subject to a municipal tax which has
been made a charge on the property by statute have a H
716 SUPREME COURT REPORTS [2009] 2 S.C.R.

A constructive knowledge of the tax and of the possibility of
some arrears being due with the result that it becomes
_,
their duty before acquiring the property to make enquiries
as to the amount of tax which is due or which may be due
and if they fail to make this enquiry such failure amounts
B to a wilful abstention or gross negligence within the
meaning of Section 3 of the Transfer of Property Act and
notice must be imputed to them."
....
18. Clause (g) of Sub-section (1) of Section 55 of the )-

Transfer of Property Act whereupon reliance has been placed
c by Mr. Sen reads as under :
"In the absence of a contract to the contrary, the buyer and
the seller of immoveable property respectively are subject
to the liabilities, and have the rights, mentioned in the
rules next following, or such of them as are applicable to >-
D
the property sold:- .
(1) The seller is bound -
(g) to pay all public charges and rent accrued due in respect
of the property up to the date of the sale, the interest on
E all encumbrances on such property due on such date,
and, except where the property is sold subject to
encumbrances, to discharge all encumbrances on the
property then existing." +
'"
F 19. In terms of the aforementioned provisions, therefore,
the seller is bound to pay all public charges due in respect of
the property upto the date of sale, when a property is sold in
auction. Section 55 refers to a contract only. Unless there is a
contract to the contrary, the rights and obligations of the parties
to a sale would be as indicated in Section 55. Such a contract
G
to the contrary must be express and not implied, as a result }..
). .
whereof the meaning of term encumbrance would be expanded.
The advertisement did not specify that all public charges
have to be paid.
H

~ ~;~
Al CHAMPDANY INDUSTRIES LIMITED V. 717
THE OFFICIAL LIQUIDATOR & ANR. [S.S. SINHA, J.]

~ Municipal Corporation indisputably is not a preferential A
creditor. Companies Act in relation to winding up of proceeding
is otherwise a special law. While distributing the assets between
the creditors and unsecured creditors, the provisions of Sections
529 and 530 must be complied with.
20. All claims against the companies were required to be B
filed before the liquidator until the property was sold as provided
~-
for under Section 457 of the Companies Act. In terms of Section
--'
456 thereof once an order for winding up is made the liquidator
has to take into custody the properties, effects and actionable
claims to which the company is or appears to be entitled. c
Section 528 provides that all debts payable on a contingency
and all claims against the company, present or future are
admissible to proof against the company. Section 529 provides
,(
for the same rule as in force for the time being under the law of
insolvency with respect to the estates of persons adjudged D
... insolvent. Section 530 provides for certain priorities to secured
creditors and other unsecured creditors.
Once the property is sold, the assets of the company are
required to be distributed to the creditors in order of preference.
As the respondent-Municipality was not a secured creditor, the E
impugned Judgment cannot be sustained.
.. 21. Almost a similar question in regard to the dues of the
• electrical charges came up for consideration before this Court
in lsha Marbles Vs. Bihar State Electricity Board and Anr. {1995 F
(2) sec 648). In that case sale of the assets of industrial
undertaking took place in terms of the provisions of the State .
Financial Corporation Act, 1951. Having regard to the provisions
of the Indian Electricity Act, 1910 a three Judge Bench of this
Court held that a liability on the purchaser cannot be imposed
G
4.,
J.
which was not incurred by them stating :
"63. We are clearly of the opinion that there i~ great reason
and justice in holding as above. Electricity is public
property. Law, in its majesty, benignly protects public
property and behoves everyone to respect public property. H
718 SUPREME COURT REPORTS [2009] 2 S.C.R.

·A Hence, the courts must be zealous in this regard. But, the
law, as it stands, is inadequate to ·enforce the liability of
the previous contracting party against the auction-
purchaser who is a third party and is in no way connected
with the previous owner/occupier. It may not be correct to
B state, if we hold as we have done above, it would permit
dishonest consumers transferring their units from one hand
to another, from time to time; infinitum without the payment
of the dues to the extent of lakhs and lakhs of rupees and ·•
each one of them can easily say that he is not liable for the
c liability of the predecessor in interest. No doubt, dishonest
consumers cannot be allowed to play truant with the public
property but inadequacy of the law can hardly be a
substitute for overzealousness."
22. Dues of the Municipality would also not even otherwise
)-
D come within the purview of the crown debt. Even a crown debt
could be discharged only after the secured creditors stand
discharged.
23. In Union of India & Ors. Vs. Sicom Ltd. & Anr. [2009
E (1) SCALE 10], it is stated :
"11. Generally, the rights of the crown to recover the debt
would prevail over the right of a subject. Crown debt means
the debts due to the State or the king; debts which a
prerogative entitles the Crown to claim priority for before
·F all other creditors. [See Advanced Law Lexicon by P.
Ramanatha Aiyear (3rd Edn.) p. 1147]. Such creditors,
however, must be held to mean unsecured creditors.
Principle of Crown debt as such pertains to the common
law principle. A common law which is a· law within the
meaning of Article 13 of the Constitution is saved in terms
G
of Article 372 thereof. Those principles of common law,
thus, which were existing at the time of coming into force
of the Constitution of India are saved by reason of the
aforementioned provision. A debt which is secured or
which by reason of the provisions of a statute becomes
·H
Al CHAMPDANY INDUSTRIES LIMITED V. 719
THE OFFICIAL LIQUIDATOR & ANR. [S.S. SINHA, J.]

the first charge over the property having regard to the A
-~
plain meaning of Article 372 of the Constitution of India
must be held to prevail over the Crown debt which is an
unsecured one. It is trite that when a Parliament or State
Legislature makes an enactment, the same would prevail
over the common law. B
12. Thus, the common law principle which was existing on
the date of coming into force of the Constitution of India
must yield to a statutory provision .
,, ...(

~
13. To achieve the same purpose, the Parliament as also c
the State Legislatures inserted provisions in various
statutes, some of which have been referred to herein before
providing that the statutory dues shall be the first charge
over the properties of the tax-payer. This aspect of the
matter has been considered by this Court in a series of
D
' ·'1
judgments."
I
...
~4. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. The
appeal is allowed with costs. Counsel's fee assessed at
Rs.10,000/- E

K.K.T. Appear allowed.