* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 12303/2009 in CS(OS) No. 769/2009
Reserved on: 16th November, 2009
% Decided on: 14th January, 2010
SUPER CASSETTES INDUSTRIES LTD. ...Plaintiff
Through : Mr. Amit Sibal, Mr. K.K. Khetan and
Mr. Jagdish Sagar, Advs.
Versus
MR. PUNIT GOENKA & ANR. ....Defendants
Through : Ms. Pratibha M. Singh and
Mr. Sudeep Chatterjee, Advs.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. By this order I propose to dispose of the IA No.12303/2009
filed by the plaintiff under Sections 151 & 152 CPC.
2. The contention of the plaintiff is that while considering the
interim application being IA No.5670/2009 at the preliminary stage, this
Court on 30.4.2009 passed the certain direction wherein the defendant
was directed to make a deposit of Rs.4,69,39,336/-. Admittedly the
said amount was deposited by the defendant. Thereafter vide order
CS (OS) No.769/2009 Page 1 of 6
dated 13.8.2009, while disposing of the said IA No.5670/2009 this
Court has passed the following orders in respect of the said deposit:
“To release the amount of Rs.4,00,00,000/-
(Rupees Four Crore Only) and Rs.69,33,336/-
(Rupees Sixty Nine Lac Thirty Three Thousand
Three Hundred Thirty Six Only) which has been
deposited by the defendants as per order dated 30 th
April, 2009 in favour of the plaintiff in
consonance with the admitted previous year’s
royalty and outstanding for the months of
February-March, 2009 resepectively. The said
amount as referred would cover upto 31 st March,
2010. However, it is made clear that the plaintiff
is at liberty to file the fresh application of
injunction after the expiry of the aforesaid period
which would be considered by the Court as per its
own merit. Similarly, the defendants are also
entitled to file any fresh application for
modification of the orders, if necessary incase of
change of circumstances.”
3. Admittedly the said amount of Rs.4,69,39,336/- was released
to the plaintiff. The contention of the plaintiff is now that by an
accidental slip and omission in the order dated 13th August, 2009, it
does not specify to require the defendant to deposit the VAT due to on
the payment of Rs.4,69,33,336/-. Consequently, the plaintiff has not
received the interim payment in consonance with the admitted previous
year’s royalty as this Court decided. Rather the plaintiff has received
Rs.16 lacs less amount in the previous year which is not in accordance
with the order of this Court. The prayer has been made that this Court
may correct the said error in its calculation in order to give its decision.
4. It is further submitted in the application that the sum of
Rs.4,69,33,336/- was released to the plaintiff on 5th September, 2009.
The said sum until that date was retained in a fixed deposit in the name
CS (OS) No.769/2009 Page 2 of 6
of Registrar General of this Court. Therefore, interest has accrued on
the said amount from the date of deposit till 5th September, 2009 and the
said amount of interest is available with the Registry of this Court be
released to the plaintiff being interest earned on the plaintiff’s money.
The next prayer in the application is to make directions requiring the
defendant to deposit sum of Rs.16 lacs towards payment of VAT @4%
on the amount of Rs.4 crores and the said amount be released to the
plaintiff. It is further prayed in the application that the amount of
interest accrued on the amount of Rs.4,69,33,336/- from the date of
deposit till 5.9.2009 be also released to the plaintiff.
5. Reply to this application has been filed by the defendant who
alleges that the deposit was made without prejudice to the rights and
contentions of the defendant and as a matter of fact vide order dated
13.8.2009 this Court directed the release of the said payment to the
plaintiff as an advance licence fee for the year 2009-2010 and the
plaintiff has received the amount in advance although as per the
previous agreement the payment to the plaintiff was on monthly basis
and the plaintiff is not entitled for any interest on the fixed deposit. In
its reply the defendant has also raised its grievance that while
calculating the said amount which was released to the plaintiff, the
Court did not calculate the applicable taxes which the plaintiff had to
pay to the income tax department which has to be deposited as TDS
(Tax Deductible at Source) of 11.33% which was not calculated by the
Court. The detail of the same are given in para 3 of the reply which
reads as under:
CS (OS) No.769/2009 Page 3 of 6
a Advance Licence Fee Rs. 40000000
. for 2009-2010
VAT @ 4% Rs. 1600000
Sub Total Rs. 41600000
b Arrears Feb-March-2009 Rs.6933336
. (inclusive VAT)
Total (a+b) Rs. 48533336
c TDS @ 11.33% Rs. 5498827
.
Amount Recoverable Rs. 3898827
(TDS-VAT)
6. The contention of the learned counsel for the defendant is
that in view of the same the plaintiff has to refund Rs.38,98,827/- to the
defendant which has to be deposited to the income tax department
although the defendant is not challenging the applicable VAT of 4%
which has to be paid to the plaintiff.
7. The learned counsel for both the parties are agreeable that the
contention of the defendant in its reply about the applicable taxes i.e.
TDS of 11.33% be also decided in the present application and they have
also made rival submissions in this regard. The learned counsel for the
plaintiff also strongly opposed the said request of the defendant for
refund of Rs.38,98,827/- to the defendant. Thus, in view of the said
circumstances, it is not appropriate for the Court to decide the
contention of the defendant in the present application which has been
made by the plaintiff for clarification of the order. However, the
defendant is granted two weeks time to file the proper application for
the relief claimed in the reply which is opposed by the plaintiff. As far
as the present application is concerned, I agree with the learned counsel
for the plaintiff that it was the clear intention of the order of this Court
that the interim release of money to the plaintiff should be in
CS (OS) No.769/2009 Page 4 of 6
consonance with the admitted previous years royalty and outstanding for
the month of February & March 2009 respectively. I do not want to
express any opinion about the contention of the defendant that the said
amount was ordered to be deposited ad an advance licence fee for the
year 2009-2010 in view of the orders dated 30.4.2009 and 13.8.2009 in
this regard.
8. As regards the amount of Rs.16 lacs as 4% of VAT on the
amount of Rs.4 crores is concerned, since the defendant has no
objection if the amount of Rs.16 lacs is payable to the plaintiff, the order
dated 13.8.2009 is accordingly modified by adding following order:
“The defendant is also directed to make the deposit of
Rs.16 lacs Value Added Tax @4% on the amount of
Rs.4 crores. As regards the release of interest accrued on
the fixed deposit of Rs.4,69,33,336/- is concerned, the
said objection raised by the defendant is kept open till
further direction in the matter.”
9. The contention of the defendant about the TDS amount is
concerned wherein the defendant has alleged that the plaintiff has to
refund Rs.38,98,827/- to the defendant, without going into the merit of
the said contention of the parties, it is ordered that the defendant is
given two weeks time to file the separate application in this regard,
however as regards the deposit of amount of Rs.16 lacs is concerned,
VAT charges may be deposited by the defendant within ten weeks from
today.
CS (OS) No.769/2009 Page 5 of 6
10. IA stands disposed of.
CS(OS) No. 769/2009
List before the Court on 18th March, 2010.
MANMOHAN SINGH, J.
January 14, 2010
jk
CS (OS) No.769/2009 Page 6 of 6