WAVE INDUSTRIES PVT. LTD.versusSTATE OF U.P. & ORS.

1130                       [2022]
                SUPREME COURT     16 S.C.R. 1130
                               REPORTS                       [2022] 16 S.C.R.


 A                       WAVE INDUSTRIES PVT. LTD.
                                          v.
                              STATE OF U.P. & ORS.
                          (Civil Appeal No. 9272 of 2022)
 B                             DECEMBER 15, 2022
                [K.M. JOSEPH AND HRISHIKESH ROY, JJ.]
              Liability – Slump Sale Agreement dated 17.07.2010, followed
       by a sale deed, was entered into between U.P State Sugar
       Corporation Limited-Seller (UPSSCL) and Appellant-Purchaser for
 C
       UPSSCL’s loss making Amroha sugar mill – Dispute arose w.r.t
       outstanding liability of unpaid duty, penalty, and interest, if to be
       discharged by the seller or the purchaser – Subsisting dues arising
       out of transactions occurring on dates prior to the sale, if contingent
       or conditional liability or an accrued liability which may be
 D     computed or discharged at a subsequent date – Held: There is no
       dispute that the liability towards the duty in question for the Amroha
       unit are in respect of business transactions for the period anterior
       to the signing date of the Slump Sale Agreement – The business
       liability for the Amroha unit had arisen out of the operation of the
       unit during the period before the same was sold to the appellant,
 E
       although the liability is to be quantified and discharged at a future
       date – When the liability is capable of being estimated with
       reasonable certainty, the liability is not to be treated as a contingent
       one and should be considered as a liability which may be discharged
       at a future date – Thus, the liability in question not being a contingent
 F     one, the same cannot be fastened on the purchaser who were not
       operating the unit, prior to the Slump Sale Agreement dated
       17.7.2010 – Further, in clause 12.1 and 12.2 of the Agreement read
       with Clause 9 of the Sale Deed, the liability of the purchaser, for
       the operation and activities of the unit, arose only after the signing
       date – Thus, dues relating to the activities and operation of the unit
 G
       upto 17.7.2010 (signing date), were the liabilities of the UPSSCL –
       Also, prior to 17.7.2010, the appellant was neither a dealer nor a
       manufacturer and therefore, had no tax or duty obligations to satisfy
       for the operation of the Amroha unit – Impugned order erroneously

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                                        1130
   WAVE INDUSTRIES PVT. LTD. v. STATE OF U.P. & ORS.                    1131


held that the liabilities for the transactions made prior to the sale   A
agreement are to be borne by the purchaser, set aside.
       Disposing of the appeals, the Court
       Held : 1.1 There is no dispute that the liability towards the
duty in question for the Amroha unit are in respect of business
transactions for the period anterior to the signing date of the         B
Slump Sale Agreement. Moreover assessment orders and
recovery citations have been issued by the taxing authorities in
the name of the UPSSCL. The business liability for the Amroha
unit had definitely arisen out of the operation of the unit during
the period before the same was sold to the appellant, although          C
the liability is to be quantified and discharged at a future date.
When the liability is capable of being estimated with reasonable
certainty, the liability is not to be treated as a contingent one and
should be considered as a liability which may be discharged at a
future date. Such being the position in law and the liability in
question not being a contingent one, the same cannot be fastened        D
on the purchaser who were not operating the unit, prior to the
Slump Sale Agreement dated 17.7.2010. In clause 12.1 and 12.2
of the Slump Sale Agreement read with Clause 9 of the Sale Deed,
the liability of the purchaser, for the operation and activities of
the unit, arose only after the signing date. This would suggest         E
that dues relating to the activities and operation of the unit in the
period upto 17.7.2010 (signing date), were the liabilities of the
UPSSCL while the dues relating to activities and operation of the
unit for the period subsequent to 17.7.2010, were to be the
responsibility of the purchaser. The liability of the purchaser for
the dues relating to activities and operations of the unit for the      F
period anterior to 17.7.2010, could not therefore have been
fastened on the appellant in view of the clear provisions made in
clause 9 of the Sale Deed read with Clause 12.1 and 12.2 of the
Slump Sale Agreement as both are specific in nature. In the same
context, the clause 2.6 which speaks of contingent liabilities and      G
legal cases pending in respect of the unit, to be fastened on the
purchaser and the seller being absolved of such liability, are
generic conditions provided under clause 2.6 of the Slump Sale
Agreement and this Court is not impressed by those. The reason
being the contradictions in the specific conditions mentioned in
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1132            SUPREME COURT REPORTS                       [2022] 16 S.C.R.


 A     the Slump Sale Agreement. In such circumstances, clause 9 of
       the sale deed being specific will govern the parties and will
       override anything contrary, contained in the Slump Sale
       Agreement. [Paras 15, 17 and 18][1138-E; 1139-B-G]
             1.2 In view of the specific and detailed provisions with
 B     regard to the distribution of liabilities in respect of the dues
       whereby duties in respect of the transactions upto the date of
       agreement are to be borne by the Seller i.e. UPSSCL and the
       buyer is made responsible only for dues in respect of post-sale
       transactions it is observed that the impugned order dated
       1.11.2017 has erroneously held that the liabilities for the
 C     transactions made prior to the sale agreement, are to be borne
       by the purchaser. That apart, prior to 17.7.2010, the appellant
       was neither a dealer nor a manufacturer and therefore, had no
       tax or duty obligations to satisfy for the operation of the Amroha
       unit. It is the UP State Sugar Corporation Limited which had
 D     collected all the dues from their customer on behalf of the State
       Government and they are under an obligation to deposit the
       collected sum in the government treasury. In view of the
       foregoing, the liability in question, not being a contingent liability,
       cannot be fastened on the shoulders of the appellant. The
       impugned judgment is set aside. [Paras 19, 20][1139-G-H;
 E     1140-A-B, D]
             Bharat Earth Movers v. Commissioner of Income Tax,
             Karnataka (2000) 6 SCC 645 : [2000] 2 Suppl. SCR
             295 – relied on.

 F                            Case Law Reference
       [2000] 2 Suppl. SCR 295          relied on         Para 16
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9272
       of 2022.
             From the Judgment and Order dated 01.11.2017 of the High Court
 G
       of Judicature at Allahabad at Lucknow Bench in W. P. (M/B) No.20032
       of 2016.
             With
             Civil Appeal Nos. 9273, 9274 and 9275 of 2022.
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   WAVE INDUSTRIES PVT. LTD. v. STATE OF U.P. & ORS.                           1133


      T. Srinivasa Murthy, Senthil Jagadeesan, Anandh K., Ms. Nishita          A
Jagetia, Advs. for the Appellant.
      Balbir Singh, ASG, Ardhendhumauli Kumar Prasad, AAG, Ms.
Rukhmini Bobde, Syed Abdul Haseeb, Adit Khorana, Ms. Priyanka Das,
Mukesh Kumar Maroria, Rohit K. Singh, Pritam Bishwas, Kislay Jha,
Ms. Ruchi Gupta, Samarth Srivastava, Ms. Shreya Srivastava, Aman               B
Singh Bhadoria, Ms. Ananya Sahu, Bhakti Vardhan Singh, Pradeep Misra,
Deleep Dhyani, Manoj Kumar Sharma, Suraj Singh, B. Krishna Prasad,
Advs. for the Respondents.
      The Judgment of the Court was delivered by
      HRISHIKESH ROY, J.                                                       C

      Leave granted.
       2. Heard Mr. T. Srinivasa Murthy, the learned counsel appearing
for the appellants. Also heard Mr. Balbir Singh, the learned Additional
Solicitor General of India appearing for respondent-State. The U.P State       D
Sugar Corporation (respondent no.2) for short “the UPSSCL”, is
represented by Mr. Pradeep Misra, the learned counsel.
      3. For the sake of convenience, we will take the facts of SLP(C)
No. 3525 of 2018, for the purpose of this judgment: -
       The appellants were the writ petitioners before the High Court          E
who were unsuccessful in their challenge to the order dated 7.6.2016
whereby the liability for payment of Rs.2,14,169/- duty, Rs. 2,41,169/-
penalty, and Rs.1,40,459/- interest, amounting to Rs. 5,68,797/- is declared
to be borne by M/s Wave Industries Pvt. Ltd. (Purchaser) and not by
the Seller i.e. “UPSSCL”.
                                                                               F
      4. This appeal relates to the Amroha sugar mill which was one of
the four loss making sugar mills owned and operated by the UPSSCL.
For the unit at Amroha, a Slump Sale Agreement dated 17.7.2010 was
entered into, followed by the sale deed dated 4.10.2010, between the
UPSSCL and the appellant.
                                                                               G
       5. The above arrangements were preceded by the advertisement
dated 29.6.2009 in the newspaper proposing slump sale of the loss making
sugar mills of UPSSCL. A pre-bid meeting was next held on 10.7.2009
with the prospective buyers where, inter alia, concern was raised on
outstanding liabilities against the units on sale. The appellant submitted
                                                                               H
1134             SUPREME COURT REPORTS                             [2022] 16 S.C.R.


 A     bid for Rs.13.94 crores for the Amroha Unit and as per Clause 12 of the
       Slump Sale Agreement dated 17.7.2010, all liabilities referred to in the
       said clause, accruing before the date of signing agreement were to be
       borne by the Seller and those of subsequent period, were to be borne by
       the Purchaser. The sale agreement was registered accordingly on
       9.8.2010 and possession of the Amroha unit was taken over by the
 B
       appellant on 17.8.2010 and since then the appellant has been managing
       the unit. Subsequent to the Slump Sale Agreement, formal sale deed
       was executed on 4.10.2010 and in Clause 9 thereof it was made clear
       that the seller shall be liable to bear all assessments, rents, rates, taxes,
       outgoing and impositions of whatsoever nature relating to the Unit upto
 C     the signing date and thereafter these will be the liability of the purchaser.
       The dispute here relates to liability of unpaid duty, penalty, and interest.
       When recovery proceeding relating to the period prior to 17.7.2010 was
       initiated by the respective departments, the appellant filed a writ petition
       before the Lucknow Bench of the High Court of Allahabad and the said
       Writ Petition No.2587(M/B) of 2013 was disposed of by the High Court
 D
       on 22.3.2013, with a direction to the State Government to afford hearing
       to the purchasers and decide their representation, with a speaking order.
              6. The appellants representation was disposed of on 7.6.2016 by
       declaring that the purchaser is liable for the outstanding liabilities in respect
       of the sugar unit at Amroha upto 30.11.2011. The payable duty with
 E     penalty and interest was quantified at Rs.5,68,797/- and the issue to be
       decided in this appeal is whether those outstanding liabilities are to be
       discharged by the seller or the purchaser.
              7. Before we proceed further it would be proper to take note of
       certain defined terms in the Slump Sale Agreement dated 17.7.2010:
 F
                 “Certain Liabilities:
                 Certain Liabilities shall mean such liabilities, debts and other
                 obligations in respect of the Unit including contingent liabilities
                 of Unit except Excluded Liabilities.
 G               Current Liabilities:
                 B. Statutory Dues
                 (vi) Income Tax
                 (vii) Sale Tax/VAT
 H
   WAVE INDUSTRIES PVT. LTD. v. STATE OF U.P. & ORS.                              1135
                [HRISHIKESH ROY, J.]

          (viii) Entry Tax                                                        A
          (ix) Others due including Purchase tax.
          Excluded Liabilities:
          “Excluded Liabilities shall mean Liabilities claimed till Signing
          Date which are being retained/settled by the Seller.                    B
          Explanation: For the purposes of this definition liabilities
          accrued but unclaimed shall not be settled or retained by the
          seller but the same shall stand transferred to the purchaser.
          Liabilities : Liabilities shall mean all the liabilities on account
          of borrowings by the Company, and all other liabilities whether         C
          ascertained or uncertained, contingent and disputed, in relation
          to the Unit, any claims by or due to third parties, and labour,
          excise, sales tax claims etc.
          Signing Date:
                                                                                  D
          Signing Date shall mean the date of signing of this Agreement.
          Purchase Price:
          Purchase Price shall mean bid amount plus Net Working Capital
          Adjustment plus all other amount mentioned in clause3 of this
          Agreement.                                                              E
          Taxes:
          Taxes shall mean all and any statutory or other governmental
          levies, taxes charges, cess, penalties, rates, stamp duties and
          other dues pertaining or relating to the Sale of the Unit as
          contemplated herein, including but not limiting to sales tax,           F
          income tax, registration charges etc.
          Bid Amount Bid amount shall mean that sum of Rs. 17.01
          Crores (Rupees Seventeen crores one lakh only) as mentioned
          by the purchaser in the Financial Proposal (RFP Application)”
                                                                                  G
       8. Clause 2.1 provided that the unit is being sold as a going concern
on as is where is basis and all rights, title and interest of the seller in the
unit together with all assets and liabilities except excluded liabilities are
to be transferred by the seller and delivered to the purchaser. Clause
2.1 reads as under:-
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1136             SUPREME COURT REPORTS                              [2022] 16 S.C.R.


 A                  “2.1 In consideration of the Purchase Price to be paid by
                    the Purchaser to the Seller in the manner set out herein and
                    subject to the provisions of this Agreement, on the Closing
                    Date, the Seller shall Transfer and deliver to the Purchaser
                    and the Purchaser shall purchase, acquire and accept from
                    the Seller, all right, title and interest of the Seller in and to
 B
                    the Unit, together with all Assets and Liabilities except
                    Excluded Liabilities, as a going concern on an as is where is
                    basis” collectively (“The Unit”)”
              9. Clause 2.6 speaks of transfer of contingent liabilities and it
       provided that all contingent liabilities and legal cases shall be transferred
 C     by the seller to the purchaser and purchaser is solely liable in respect of
       such contingent liabilities from the signing date and the seller shall have
       no liabilities whatsoever in such respect. Clause 2.6 reads as under:-
                   “2.6 It is hereby further agreed between the parties that all
                   contingent liabilities and legal cases pending in respect of the
 D                 Unit, shall be transferred by the Seller to the Purchaser and
                   the Purchaser is solely liable in respect of such contingent
                   liabilities from the Signing Date and the Seller shall have no
                   liabilities whatsoever in such respect.
               10. Clause 12 speaks of payment of taxes and stamp duty and it is
 E     stated that after signing date the purchaser shall be liable and responsible
       for all obligations or liabilities in respect of the operations and activities
       of the unit after the signing date. The following sub-clauses of Clause
       12 being relevant are extracted :-
                “12.1 The purchaser shall save as herein expressly provided,
 F              bear, pay and discharge all assessments, rents, taxes, outgoing
                and impositions of whatsoever nature relating or pertaining to
                the operations and activities of the Unit pertaining to the period
                after the Signing Date. The Purchaser shall be liable and
                responsible for all obligations or liabilities arising from or in respect
 G              of the operations and activities of the Unit of the Seller after the
                Signing Date.
                12.2 The purchaser shall bear, pay and discharge all liabilities,
                obligations, assessments, rents, rates, taxes, outgoings and
                impositions of whatsoever nature relating or pertaining to the
                operations and activities of the after the signing date.
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   WAVE INDUSTRIES PVT. LTD. v. STATE OF U.P. & ORS.                             1137
                [HRISHIKESH ROY, J.]

         12.3 Save and except as herein otherwise provided, the                  A
         Purchaser shall bear and pay the stamp duty, registration charges
         and sales tax or any other applicable tax, if any payable, on or in
         respect of the Transfer of the Unit.
         12.4 Capital Gains Tax, if any payable in connection with the
         Transfer contemplated under this Agreement, shall be borne by           B
         the Seller.”
      11. The sale deed was executed on 4.10.2010 for a total
consideration of Rs. 13.94 crores and the agreement dated 17.7.2010
was made part of the sale deed. Clause 8(d) of the sale deed reads as
under:-                                                                          C
         “8(d) All taxes, levies, cesses or any charges in respect to the
         Unit/Land, whether levied by a government authority, such as
         municipal or property tax that are due up to the date of Agreement
         (“Signing Date”) have been paid in full by seller.
         Further Clause 9 of the sale deed reads as under:-                      D
             “9. The Seller shall be liable to bear all assessments, rents,
            rates, taxes outgoing and imposition of whatsoever nature
            relating or pertaining to the Unit up to the Signing Date and
            thereafter, the same shall be the liability of the Purchaser.
                                                                                 E
       12. In the speaking order dated 7.6.2016, the appellant’s
representation was rejected and the liability of duty, interest, and penalty,
for the period prior to the date of purchase of the Amroha unit has been
fastened on the appellant. The same is premised on clause 2.6 of the
Slump Sale Agreement which stated that all contingent liabilities and
legal cases pending in respect of the unit shall be transferred by the           F
UPSSCL to the purchaser and the appellant as the purchaser shall be
solely responsible in respect of the contingent liabilities on or after the
signing date.
       13. While rejecting the challenge of the appellant to the speaking
order dated 7.6.2016, the High Court relied on clause 2.1 of the agreement       G
and adverted to the expression “except excluded liabilities in the said
clause” and held that it means liabilities claimed till signing date which
are retained or settled by the Seller and since tax liabilities are not shown
to be part of the “excluded liabilities” and since clause 2.4 provides for
transfer of all contingent liabilities and legal cases in respect of the unit,
                                                                                 H
1138               SUPREME COURT REPORTS                            [2022] 16 S.C.R.


 A     to the purchaser, the recovery of such contingent liabilities after the
       signing date would only be from the purchaser and not from the seller.
       The appellant’s challenge to the speaking order was thus negated and
       the writ petition came to be dismissed upholding the speaking order holding
       that the disputed liabilities are to be borne by the purchaser.
 B             14. The questions to be answered here are (1) whether the dues
       arising out of the operations and activities of the sugar unit prior to the
       date of acquisition is to be borne by the seller and whether subsisting
       dues arising out of transactions occurring on dates prior to the sale, can
       be characterized as contingent or conditional liability or is it an accrued
       liability which may be computed or discharged at a subsequent date; (2)
 C     Whether a purchaser of a sugar mill could be treated as a dealer or
       service provider as an entity liable for discharging dues even if they had
       not been acting as a dealer or service provider or otherwise as an entity
       on whom, liability could be fastened; (3) Whether the speaking order is
       vitiated, due to conflict of interest, a point which the impugned order
 D     does not indicate was argued before the high court.
              15. There is no dispute that the liability towards the duty in question
       for the Amroha unit are in respect of business transactions for the period
       anterior to the signing date of the Slump Sale Agreement. Moreover
       assessment orders and recovery citations have been issued by the taxing
 E     authorities in the name of the UPSSCL. Therefore, can such liability for
       transactions prior to the Slump Sale Agreement dated 17.7.2010 be
       fastened on to the purchaser.
             16. In Bharat Earth Movers vs. Commissioner of Income Tax,
       Karnataka1, on the issue of contingent liability, Justice R C Lahoti in his
 F     opinion, which has stood the test of time, on behalf of the three Judge
       Bench stated the following:-
                      “4. The law is settled: if a business liability has definitely
                      arisen in the accounting year, the deduction should be allowed
                      although the liability may have to be quantified and
 G                    discharged at a future date. What should be certain is the
                      incurring of the liability. It should also be capable of being
                      estimated with reasonable certainty though the actual
                      quantification may not be possible. If these requirements
                      are satisfied the liability is not a contingent one. The liability
                      is in praesenti though it will be discharged at a future date.
 H     1
           (2000) 6 SCC 645
   WAVE INDUSTRIES PVT. LTD. v. STATE OF U.P. & ORS.                            1139
                [HRISHIKESH ROY, J.]

             It does not make any difference if the future date on which        A
             the liability shall have to be discharged is not certain.”
       17. In the case in hand, the business liability for the Amroha unit
had definitely arisen out of the operation of the unit during the period
before the same was sold to the appellant, although the liability is to be
quantified and discharged at a future date. When the liability is capable       B
of being estimated with reasonable certainty, the liability is not to be
treated as a contingent one and should be considered as a liability which
may be discharged at a future date. Such being the position in law and
the liability in question not being a contingent one, the same cannot in our
view be fastened on the purchaser who were not operating the unit,
prior to the Slump Sale Agreement dated 17.7.2010.                              C

       18. Pertinently, in clause 12.1 and 12.2 of the Slump Sale Agreement
read with Clause 9 of the Sale Deed, the liability of the purchaser, for
the operation and activities of the unit, arose only after the signing date.
This would suggest that dues relating to the activities and operation of
the unit in the period upto 17.7.2010 (signing date), were the liabilities of   D
the UPSSCL while the dues relating to activities and operation of the
unit for the period subsequent to 17.7.2010, were to be the responsibility
of the purchaser. The liability of the purchaser for the dues relating to
activities and operations of the unit for the period anterior to 17.7.2010,
could not therefore have been fastened on the appellant in view of the          E
clear provisions made in clause 9 of the Sale Deed read with Clause
12.1 and 12.2 of the Slump Sale Agreement as both are specific in nature.
In the same context, the clause 2.6 which speaks of contingent liabilities
and legal cases pending in respect of the unit, to be fastened on the
purchaser and the seller being absolved of such liability, are generic
conditions provided under clause 2.6 of the Slump Sale Agreement and            F
we are not impressed by those. The reason being the contradictions in
the specific conditions mentioned in the Slump Sale Agreement. In such
circumstances, clause 9 of the sale deed being specific in our opinion,
will govern the parties and will override anything contrary, contained in
the Slump Sale Agreement.                                                       G
       19. Furthermore, in view of the specific and detailed provisions
with regard to the distribution of liabilities in respect of the dues whereby
duties in respect of the transactions upto the date of agreement are to be
borne by the Seller i.e. UPSSCL and the buyer is made responsible only
for dues in respect of post-sale transactions, we are unable to agree           H
1140              SUPREME COURT REPORTS                          [2022] 16 S.C.R.


 A     with the impugned order dated 1.11.2017 which erroneously in our view,
       held that the liabilities for the transactions made prior to the sale
       agreement, are to be borne by the purchaser.
               20. That apart, prior to 17.7.2010, the appellant was neither a
       dealer nor a manufacturer and therefore, had no tax or duty obligations
 B     to satisfy for the operation of the Amroha unit. It is the UP State Sugar
       Corporation Limited which had collected all the dues from their customer
       on behalf of the State Government and they are under an obligation to
       deposit the collected sum in the government treasury. But for those
       transactions, for the period prior to 17.7.2010, the UPSSCL are trying to
       usurp the collected sum and are trying to pass on the burden to the
 C     appellant who was neither the dealer nor they had anything to do with
       the operation of the unit prior to 17.7.2010. In such circumstances, the
       rejection of the representation of the appellant appears to be arbitrary
       and the speaking order could not therefore have been sustained by the
       High Court in the impugned judgment. In view of the foregoing, the
 D     liability in question, not being a contingent liability, cannot be fastened on
       the shoulders of the appellant. The contrary view taken in the speaking
       order and in the impugned judgment are therefore found to be
       unsustainable. The appeal is accordingly allowed by setting aside the
       impugned judgment leaving the parties to bear their own cost.
 E            21. The appeals arising out of SLP (C) No. 4053 of 2018, SLP(C)
       No. 3537 of 2018 and SLP(C) No. 12724 of 2018 are also disposed of,
       in the above terms.

       Divya Pandey and Anurag Bhaskar                             Appeals disposed of.
       (Assisted by : Priyanshu Agarwal, LCRA)
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