Eap Industries Ltd. vs R.A. Industries And Anr.
1996 Latest Caselaw 549 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The plaintiff, named above, has filed the present suit against the defendants for the recovery of Rs. 1,14,124.58. The case of the plaintiff, in brief, is that the plaintiff is a Limited Company, incorporated under the Companies Act, 1956 with its branch office at A/17,.2nd Floor, D.D.A. Office-cum- Shopping Complex, defense Colony, New Delhi and Shri Shekhar Chand Jain has been authorised to sign and verify the plaint and institute the suit on behalf of the plaintiff Company by virtue of the power of attorney executed by. the plaintiff Company in his favour. It is alleged that the plaintiff is carrying on the business of manufacture and supply of Die-Octyl Phthalate, Dibutyl Phthalate etc. It is averred that defendant No. 1 is a proprietorship concern of which defendant No. 2 is the sole proprietor and thus both the' defendants are jointly and severally liable to pay the amount due and payable to the plaintiff Company. I .A. It is alleged that the-defendants have been purchasing Die-Octyl Phthalate, Dibutyl Phthalate etc. from the plaintiff from time to time. The plaintiff and the defendants both as per the averments made in the plaint, are a registered dealers under the Delhi Sales Tax Act, 1975 and the Rules framed thereunder The defendants had purchased the aforesaid goods from the plaintiff/or local re-sale against St Forms/ST-1 declaration under the Delhi Sales Tax Rules and had represented/promised that the requisite declaration in the ST-1 Forms in respect of the said sales would be issued in due course. 1.B. It is further alleged that the defendants from time to time purchased goods on credit as per the invoice and value detailed and described in the statement annexed with the plaint and marked as Annexure 'A' and were required to furnish the ST-1 Forms or in lieu thereof were required to pay sales tax @ 7 % of the value of goods. 1.C. It is further the case of the plaintiff that at the time of sale, the defendants did not pay any sales tax in respect of the aforesaid purchases and their liability to pay the same would arise in the event of their refusal to issue the said declaration ST-1 Forms. It is alleged that the plaintiff has been repeatedly reminding the defendant to send the ST-1 Forms, declarations but the request of the plaintiff has yielded no results. It is further alleged that the plaintiff called upon the defendants by legal notice and otherwise to furnish the ST-1 Forms or in the non event of the same to pay 7% of the sale price as sales tax. It is further alleged that the plaintiffs have filed separate suit for the recovery of the amount of the goods supplied and cheques issued by the defendants from time to time under Order xxxvii, Cpc which is pending in this Court and therein the plaintiff reserve the right to file any further suit for the recovery of the amount of sales tax in the event of non furnishing of ST-I Forms by the defendants and any liability arising on account of the same. 1.D. It is alleged that as the defendants have been avoiding to furnish ST-1 Forms with the result that the plaintiff has been put to the liability of Rs. 1,14,125.58 by the Sales Tax Authorities which the defendants are liable to reimburse in the event of non-famishing of ST-I Forms by the defendants to the plaintiff. It has been prayed that a decree for Rs. 1,14,124.58 be passed in favour of the plaintiff and against the defendants with costs and interest pendente lite and future @ 12% per annum.

(2) The defendants were served by publication. Despite publication of notice in the newspaper ' The Statesmen' dated the 12th November, 1990, the defendants did not care to appear and vide order dated 30th November, 1990 they were directed to be proceeded ex-parte in the present proceedings.

(3) The plaintiff, in support of its case, has adduced the evidence by way of affidavit and has filed the affidavit of Mr. Panna Lal Bhardwaj, the constituted attorney of the plaintiff. Sh. Panna Lal Bhardwaj in his affidavit has fully supported the case of the plaintiff.

(4) On a consideration of the averments made in the plaint, the material on record and the facts stated by the constituted attorney of the plaintiff. Mr. Panna Lal Bhardwaj in his affidavit dated 21st January, 1993, which has gone on record unrebutted and unchallenged which I see no reason to disbelieve, it is established that the plaintiff is carrying on the business of manufacture and supply of Die-Octyl Phthalate, Dibutyl Phthalate etc. and that the defendants have been purchasing the above said articles from the plaintiff from time to time. It is further established that the plain tiff and the defendants are registered dealers under the Delhi Sales Tax Act, 1975 and the Rules framed thereunder. It is also established that the defendants have purchased the aforesaid goods for local re-sale against ST-1 Forms/ST-1 declaration under the Delhi Sales Tax Rules and represented/promised that the requisite declaration in ST-I Forms in respect of the said sales would be issued in duecourse. It is also established that the defendants did not furnish the ST-1 Forms/ declarations which they were required to do and that the defendants have been avoiding to furnish the said ST-1 Forms with the result that the plaintiffs have been put to the liability of Rs. 1,14,124.58 by the Sales Tax Authorities.

(5) In view of the above discussion, the suit of the plaintiff is decreed with costs for Rs. l,14,124.58( Rs. one lac fourteen thousand one hundred twenty four & paise fifty-eight only) against the defendants with interest pendente lite and future @ 12% per annum. The liability of the defendants will be joint and several. Decree sheet be drawn up accordingly and thereafter the file be consigned to record room.