Delhi High Court
Sanjay Mehra vs Kores India Ltd. on 15 January, 2018
$~R4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 15th January, 2018
+ RFA 130/2007
SANJAY MEHRA ..... Appellant
Through : None.
versus
KORES INDIA LTD. ..... Respondent
Through : None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. On 3rd January, 2018 the present appeal was called and none
appeared for the parties. The matter is being called again today. None
appears for the parties. On 7th August, 2007, the stay application was
dismissed as the Appellant had submitted that he was not in a position to
make any deposit.
2. The present appeal arises out of judgment/decree dated 12th
December, 2006. The suit filed by the Respondent/Plaintiff (hereinafter,
'Plaintiff') is for recovery of Rs.11,59,381.44. The Plaintiff, a Manufacturer
of stationery products claimed that it had supplied goods to the
Appellant/Defendant (hereinafter, 'Defendant') and a running account was
maintained between the parties. The supplies made during the year 1991-92
and 1992-93 are the subject matter of the present appeal.
3. It is the case of the Plaintiff that though the payments for purchases
were made, the ST-1 forms were not submitted despite repeated requests. In
view of the non-submission of ST-I forms, the Plaintiff was forced to
deposit a sum of Rs.3,90,150/- and Rs.6,45,012/- with the Sales Tax
Authorities (hereinafter, 'Authorities') for the years 1991-92 and 1992-93,
respectively. It is this amount that the Plaintiff seeks recovery of from the
Defendant.
4. The following issues were framed vide order dated 31st May, 2004 by
the learned Trial court:
"1.Whether the plaintiff is entitled to decree for a sum
of Rs.11,59,381.44 alongwith interest @ 12% p.a.?
OPP.
2. Whether the suit is barred by limitation? OPD.
3. Whether there is no cause of action? OPD.
4. Relief."
5. The primary defence of the Defendant was that the sales tax forms
pertained to the year 1991-92 but the suit for recovery was filed only in the
year 2001. Hence, the Defendant claimed that the suit was barred by
limitation. The Plaintiff relied upon Article 55 of the Limitation Act, 1963,
which reads as under:
"Description of suit Period of Time from which
limitation period begins to run
55. For compensation Three years When the contract is
for the breach of any broken or (where
contract, express or there are successive
implied not herein breaches) when the
specially provided for breach in respect of
which the suit is
instituted occurs or
(where the breach is
continuing) when it
ceases."
6. The Plaintiff submitted that there was a continuing breach by the
Defendant and that continuing breach ceased to exist only when the Plaintiff
deposited the money with the Authorities in the year 2001. The Trial court
relied upon the judgment in Lloyed Bitumen Products Pvt. Ltd. Vs. Oil &
Natural Gas Commission 1990 (3) CCC 398.
7. The Trial court specifically notes that the non-giving of the ST-1
forms, which is an admitted position, was a statutory obligation of the
Defendant which was discharged by the Plaintiff only in the year 2001.
Hence, the suit was well within limitation.
8. On Issue No. 1, the learned Trial court held that the Defendant had
admitted categorically in his cross examination that all the bills/invoices
bore his signatures, barring a few. The non-supply of ST-1 forms was also
admitted. The stand of the Defendant's witness was that the ST-1 forms
were not liable to be given qua the material supplied to him. The relevant
part of the cross examination is set out herein below:
"It is correct that I had dealing with plaintiff company.
I used to receive stationary goods and made payment
thereof. All the bills Ex.PW1/1 (1-217 collectively)
bear my signature except bill no.57396, 57749, 58384,
58385, 58443, 58542, 58939, 58971, 59007, 59496,
59918, 60213, 60312, 60314, 60356, 60402.
.................
I have not yet supplied ST form for the bills on which I
have admitted my signature as ST form was not due on
the material mentioned in the bills.
...............
It is wrong to suggest that I had not paid the payment
of the entire bills by which I received the goods. It is
correct that if the dealer does not give ST 1 form to the
company, company has to pay the sales tax."
9. The Trial court, finds that the invoices clearly mentioned that all the
goods were sold against sales tax forms. The relevant extract of the invoices
reads as under:
"We hereby certify that our registration certificate
under the Delhi Sales Tax Act 1957 is in force on the
date on which the sale of the goods specified in this
bill/cash memorandum is made by us and that the
transaction of sale covered by this bill/cash
memorandum has been effected by us in the regular
course of our business."
10. No evidence was led by the Defendant to substantiate the plea that
ST-1 forms were deposited with the Authorities. Since the Plaintiff had been
forced to pay the sales tax of Rs.10,35,162/-, due to the default of the
Defendant, the Trial court held that the Plaintiff is entitled to recover the
said sum. The Trial court, therefore, awarded the said sum along with
interest @ 9% since 1st October, 2001 till realization.
11. A perusal of the records reveals that the pleadings and the evidence
has been properly appreciated by the learned Trial court. The admissions by
the witness of the Defendant, both in the pleadings and in the cross-
examination, clearly point to the fact that there was default by the Defendant
in depositing the sales tax on the purchases made by him and on handing
over of the ST-1 forms. The statutory obligation of the Defendant having
been discharged by the Plaintiff, the Plaintiff is entitled to recover the said
amount from the Defendant. There is no illegality in the impugned order.
The suit has been rightly decreed in the favour of the Plaintiff. There is no
appearance on behalf of the Appellant. The impugned judgment and decree
passed by the Trial court are upheld.
12. The appeal is accordingly, dismissed on merits.
PRATHIBA M. SINGH, J.
JUDGE
JANUARY 15, 2018
j
