IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 19 of 2001()
1. T.K.SIMON
... Petitioner
Vs
1. HINDUSTAN NEWS PRINT LTD.
... Respondent
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent :SRI.U.K.RAMAKRISHNAN (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :15/07/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 19 OF 2001
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Dated this the 15th day of July, 2010.
J U D G M E N T
This appeal is preferred by the plaintiff in
O.S.857/95 against the judgment and decree
passed by the Principal Subordinate Judge,
Kottayam. The suit is one for realisation of
the amount under various heads and the plaintiff
has been granted a decree for a sum of
Rs.26,622.40. The plaintiff has challenged the
finding on the ground that he had claimed
Rs.16,589.84 which is paid as sales tax. The
defendant on the other hand would contend that
the liability to pay the tax is on the plaintiff
and whatever tax he has paid has been adjusted
and only the balance is adjusted in the final
bill and therefore the plaintiff cannot claim
any more amount under the head of sales tax.
A.S. 19 OF 2001
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The documents are not very much there to pin
point this but at the same time it has been
deposed by PW1 that there is a notification to
the effect that the sales tax is to be deducted
from the total amount. It appears to be a
correct statement in the light of the admission
by PW1 in his cross examination. In page 11 of
the deposition the specific case of the
plaintiff is that as per the contract the
defendant has to pay sales tax but it has not
paid and that the plaintiff has deposited the
same. It is very clear when he further deposes
that, “………………………………….
…………………………………………
………………………………………..
………………………………………..”
So it is very clear that there was liability to
pay tax by the plaintiff and the defendant has
not undertaken anything with respect to the
exclusion of payment of tax. It is deposed by
A.S. 19 OF 2001
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the witness of the defendant that at the time of
final settlement sales tax was deducted and when
a receipt of Rs.8,705 was produced it was given
credit to and reimbursed to the plaintiff. So
as per the contract there is no exclusion of
payment of tax and there is nothing to show that
defendant was bound to pay tax. So the
plaintiff has to pay tax and since he did not
pay the tax the condition is to pay the tax and
adjust in the final bill.
2. Learned counsel would rely upon
Ext.A9 which would show that on 11.5.94 a
certificate is issued to show that there was no
tax liability but it was made clear that tax
liability if any subsequently found will be
demanded and collected at the time of final
assessment. Unfortunately the final assessment
does not see the light of the day and the
plaintiff has not produced the same. Therefore
the finding of the court below that the amount
A.S. 19 OF 2001
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that has been paid as sales tax by the plaintiff
has been adjusted and only the balance is
deducted appears to be correct and in accordance
with the terms of the contract. So on that
point the plaintiff is not entitled to succeed.
Therefore I do not interfere with the finding of
the court below. The appeal lacks merits and
the same is dismissed but without costs.
M.N. KRISHNAN, JUDGE.
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A.S. 19 OF 2001
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M.N. KRISHNAN, J.
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A.S. No. 19 OF 2001
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J U D G M E N T
15th July, 2010.