M/S Parry Engineering & Exports Ltd v. Bhardwaj Welfare Trust

order. This assessment order was admittedly a cumulative assessment; it does not in any manner substantiate this submission of the appellant that Ex.P-5 was a document which had accompanied Ex.P-4. This does not find mention either in Ex.P-4 and nor does it find mention in the testimony of either of the two witnesses of the plaintiff. The contention of the plaintiff is that Ex.P-4 (assessment order) had taxed the plaintiff @ 12%; thus 12% is payable by the defendant. This submission is again negated by the bill Ex.DW-1/2 which shows that on the bill amount of ?20,19,069/- (dated 26.09.1995) Central Sales Tax of ^76,104/- has been calculated. This was also the contention of the defendant in his written statement. The defence in the written statement was that the Central Sales Tax @ 4% had already been paid i.e. an amount of ?1,55,000/-; demand of 12% is malafide. Thus even on merits the plaintiff had failed to establish that this amount of ?2,44,288/- was part of the assessment order (Ex.P-4) which was because of the non-supply of the 'C forms by the defendant. Ex.P-4 in fact makes a reference to the non-production of 'E' form and not a 'C form.

¶11The judgments rehed upon by learned counsel for the Page 6 of? appellant reported in AIR 1956 Bombay 106 Khetarnal Amarnath Vs. Madhukar Pictures. AIR

(30) 1943 Madras Ghulam Asadulldh Khan & others Vs. Mohamed Ali Khan and others and AIR (31) 1944 Patna 185 Chunibhai Patel and others Vs. Natha Bhai Patel are wholly inapplicable. Before a loss can be indemnified, it is incumbent upon a party alleging the loss to establish it; the plaintiff had failed to prove that this claim of ?2,44,288/- charged by him was on account of the non-supply of the 'C form which hability was actually the liabihty of the defendant. The finding of the two fact finding courts below call for no interference.

¶12Substantial question of law is accordingly answered in favour of the respondent and against the appellant. There is no merit in this appeal. Dismissed. INDERMEET

KAUR, J. MAY 24, 2011 a Page7of7

* IN THE HIGH COURT OF DELHI AT NEW DELHI o/^ DateofJudgment: 24.05.2011 + s ANo. 141/2009 M/S PARRYENGINEERING&EXPORTSLTD. Appellant Through: Mr. SandeepGupta,Advocate. Versus BHARDWAJWELFARETRUST Respondent Through: Mr. RajeshChhabra, Advocate. HO^^EMS. JUSTICEINDERMEETKAUR 1. Whetherthe Reportersof localpapersmay be allowedto see the judgment? 2. To be referredto the Reporteror not? Yes 3. Whetherthejudgmentshouldbe reportedin the Digest? Y0S TNDERMEFT KAUR. T. (Oral) 1. This appeal has impugnedthe judgmentand decree dated 04.08.2009 which has endorsed the finding of the trial Judge dated 12.12.2005wherebythe suit filed by the plaintiffM/s Parry Engineering&ExportsLtd. had beendismissed. 2. The plaintiffhad filed a suit for recovery of ?2,44,488/-; contention was that the defendant had placed an order for purchaseof transformers;transformershad been supphedby the Page1of7 plaintiffto the defendanton 26.09.1995;bill of ?20,19,069/-had been received;the defendanthad promisedto supplythe 'C form but he did not do so; habilityunder Section6(2)(b) of the Central Sales Tax Act, 1975 (CST) was calculated@12%; an amount of ?2,42,288/-to which the plaintiffhad been assessedto becauseof this non-supplyof the 'C form had to be paid by them. Present suit was filed for the aforenotedamountcoupledwith the amount of ?2,200/- as notice charges. 3. The defendanthad disputedthe claim ofthe plaintiff.It was stated that the demand is illegal; the defendant had paid the amount (§) 4% (CST) on the bill amount; this demand of 12% is withoutany basis;no detailhad also beenfurnished. 4. On the pleadings of the parties, the following six were framed:- 1. Whetherthe suit is barred under Section92 CPC? OPD 2. Whetherthe suit is without (sic) limitation?OPD 3. Whether this court has no territorialjurisdictionto entertainand try present suit? OPD 4. Whetherthe plaintiffis entitledto recoveryof suit amountas claimedin the prayer para of the plaint? OPP 5. Whetherthe plaintiffis entitledto interest?If so at what rate and for what period? OPP 6. Pvelief. 5. Oral and documentaryevidencewas led. The trialJudge had examined the testimonyof two witnesses of the plaintiff.Letter Page2ot 7 dated03.08.1999writtenby the defendantto the plaintiff(Ex.P-3) was an admitteddocument.TrialJudge was of the view that the limitation would not commence from this letter: limitation commencedfrom the date of transactionwhich in this case was 26.09.1996;Ex.P-3 was transactedafter a period of three years from the date of cause of actioni.e. threeyears after26.09.1995: it was not a valid acknowledgment;suit filed on 08.04.2002was barred by limitation.Even on merits, the court was of the view that the evidence does not substantiatethat the plaintiffwas entitled to the aforenotedamount: documentEx.P-4 which was the assessmentorderand Ex. P-5 hadbeen advertedto. Suitstood dismissed. 6. In appeal,this findingwas endorsed. 7. This is a second appeal. It has Been admitted and on 21.01.2011, the following substantial question of law was formulated:- ••Whether the constmctionofletterdated 03.08.1999(Ex.P-3)In the impugned judgmentwas perverseand ifso its effect". 8. On behalfofthe appellant,it has beensubmittedthatEx.P-3 clearly states that the defendant was willing to reimburse the amount on the non-supplyof 'C forms on the productionof the }o assessmentorder; this is an admitteddocument; cause of action had to be counted from the date of receipt of this letter i.e. 03.08.1999;suit filed on 08.04.2002was within limitation.It is further submittedthat Ex.P-4 is the assessmentorder vide which the sale tax liabilityunder Section9 of the CentralSales Tax Act has been imposed upon the plaintiff; it is pointed out that this documentwas accompaniedwith Ex.P-5 which clearlyshows that the transaction dated 26.09.1995had been entered into with the defendant i.e. Bhardwaj Welfare Trust; bill is of ?20,19,069/-. SalesTax of 12% on the aforenotedamountwhichthe plaintiffhad to pay because of non-suppl