Punjab-Haryana High Court
Jai Narain Mittal vs State Of Haryana on 8 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:046932
RSA-734-1994 (O&M) 2024:PHHC:046932
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
104
RSA-734-1994 (O&M)
Date of decision: 08.04.2024
JAI NARAIN MITTAL
..Appellant
Versus
STATE OF HARYANA AND ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashish Gupta, Advocate
for the appellant.
Mr. J.S. Pannu, AAG, Haryana.
ANIL KSHETARPAL, J(Oral)
1. This is plaintiff's regular second appeal against the judgment
passed by the First Appellate Court, which in turn has reversed the judgment
passed by the trial Court. M/s Acharya (India) Ltd. was registered as dealer
under Haryana General Sales Tax Act, 1973 (hereinafter referred to as the
'1973 Act')/Central Sales Tax Act, 1956. On 12.07.1982, the appellant stood
as a surety upto the amount of Rs.50,000/- for any default, which may be
committed in payment of the tax by M/s Acharya (India) Ltd. It was
stipulated in the surety bond that in the eventuality of withdrawal of the
surety/guarantee, the guarantor will continue to remain liable for a period of
six months. On 14.09.1982, Ex.P-12, the plaintiff withdrew his guarantee.
The dealer was asked to arrange fresh surety. He furnished surety bonds of
17.09.1982 by Sh. Nirmal Singh and Sh. Najar Singh. In the year 1986,
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assessment order was passed against the dealer for failing to file return and
the notice was given to the plaintiff to recover Rs.50,000/-. The trial Court
decreed the suit, however, the First Appellate Court reversed the judgment
resulting in dismissal of plaintiff's suit.
2. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with the scanned digital record.
3. The learned counsel representing the appellant contends that the
surety bonds furnished by the appellant would become ineffective and would
stand withdrawn on expiry of six months from 14.09.1982. He submits that
on 15.03.1983, the liability of the appellant to reimburse the department
ceases to exist. He submits that the order of assessment was passed on
21.03.1983 (Ex.P-2) and hence the appellant could not be called upon to
reimburse the amount.
4. Per contra, the learned counsel representing the State of
Haryana submits that the liability relates to the period before March, 1983.
He further submits that Section 62 of the 1973 Act, bars jurisdiction of the
Civil Court to entertain any suit challenging the assessment order or any
other order passed under the 1973 Act. The learned counsel representing the
appellant relies upon the judgment passed in State of Haryana Vs. Vipin
Kumar Gupta, (2003) 135 PLR 528, to contend that in such circumstances,
the bar of Section 62 of the 1973 Act could not be attracted in the case.
5. This Court has considered the submissions of the learned
counsel representing the parties.
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6. Though, the learned counsel representing the State of Haryana
has contended that the liability relate to the period before March,1983,
however, he failed to substantiate the same. Ex.P-2 is the order of assessment
of M/s Acharya (India) Ltd. It no where states that the default is with respect
to the period prior to March, 1983. In fact, in para 2 of the order it is
specifically noted that assessee has failed to file return of the month of May,
1983, which resulted in order of assessment. In any case, the liability of the
guarantor would arise only when order of assessment was passed, which was
passed on 21.03.1986.
7. The First Appellate Court has erred in relying upon Section 133
of the Contract Act, 1872, which is not applicable in the present case because
the same operates in the field when there is any variation made between the
principle (debtor) and the creditor without surety's consent. In this case,
there is no variation by the debtor or the creditor.
8. As regard the last submission, a Coordinate Bench in Vipin
Kumar Gupta's case (supra), has held as under:-
"4. The question of jurisdiction of the Civil Court to
entertain such a suit would not be barred because
defendant-State in the facts and circumstances of the case
cannot be acting within the four corners of the Haryana
General Sales Tax Act, 1973. Therefore, the bar of
Section 62 of the Act would not be attracted in the present
case. Moreover objection under Section 62 has not been
pressed by the defendant-appellant in either of the Courts
below. Therefore, there is no substance in this appeal and
the same is liable to be dismissed. 5. For the reasons
recorded above, this appeal fails and the same is
dismissed."
9. Keeping in view the aforesaid discussion, this Court is left with
no choice but to reverse the judgment and decree passed by the First
Appellate Court and restore that of the trial Court.
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10. Consequently, the present appeal is allowed.
11. All the pending miscellaneous applications, if any, are also
disposed of.
April 08th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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