Delhi District Court
The vs Temlin Dkhar Pg. 1 Of 7 on 10 January, 2020
IN THE COURT OF MS. NEELAM SINGH
ADDITIONAL DISTRICT JUDGE 02 SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI.
CS 969/2018
Brindco Sales Pvt. Ltd.
Regd Office :
S53, Okhla Industrial Area
PhaseII
New Delhi - 110020.
VERSUS
Mr. Temlin Dkhar (Proprietor)
M/s. T.D. Bonded Warehouse
Them Marwet, Khanapara
RIBHOI District, Meghalaya - 793101.
...... Defendant
Date of Institution : 02.07.2018
Date of Reserving judgment : 10.01.2020
Date of Judgment : 10.01.2020
Exparte Judgment:
1.The plaintiff has filed the present suit for mandatory injunction to direct the defendant to supply 'C' Forms for the financial year 2016
17. CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 1 of 7 Plaintiff's Case
2. It is the case of the plaintiff that the plaintiff is Private Limited Company incorporated under the Companies Act having its registered Office at Okhla who is leading importer and distributor of Alcoholic beverages. The present suit has been filed through Sh. Kishore Sahoo, its authorised representative. The defendant is a Proprietor of the defendant company who is a registered dealer and has a permit to store and sell beer in Arunachal Pradesh.
3. It is further averred that during the course of the business, the defendant placed an order to buy 8000 cans of Budweiser Beer from the Plaintiff. As agreed upon and as per the usual course of business, the said order was to be transported via road since the said order/stock to be supplied was lying in the plaintiff's warehouse in Mumbai. The defendant made entire payment of the said order against invoices generated by the plaintiff thereby acknowledging receipt of all the goods sent by the plaintiff. The defendant had made the purchases for the financial year 201617 against the invoices. It was also agreed between the parties that in the course of interstate sales, the plaintiff upon supplying the said order will be entitled to receive the statutory declaration in prescribed Form 'C' in terms of the Central Sales Tax Act, 1956 from the defendant within a period of three months after sale/delivery has been made so as to allow the plaintiff the exemption on tax as legally permissible under the law of the land. It is submitted that the plaintiff's liability to CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 2 of 7 submit 'C' forms to the respective authority arises after sale has been completed and failure to do so renders the plaintiff to bear penalty and interest charges which shall be imposed by the sales tax department of respective states. The defendant had given assurance at the time of supply that they will provide the 'C' forms for all the purchases made against the above invoices/bills to the plaintiff but despite the assurances by the defendant, they have failed to provide the same so far in respect of the aforementioned bills/invoices.
4. It is further averred that if the purchasing dealer /defendant does not provide the required 'C' forms to the selling dealer / plaintiff, the plaintiff shall become liable to pay balance tax payable plus penalty as applicable. Therefore Section 8(4)(a) of the Act provides that concessional rate is applicable only if purchasing dealer submits a declaration in Prescribed form C.
5. It is further averred that on the assurance and admission of the defendant to supply the 'C' Form for all the purchases that the plaintiff charged the defendant for tax @ 2% on total billed amount. The defendants were under statutory obligation to provide the plaintiff with the C form against each sale made in pursuance of every purchase order made and bill generated thereafter. It is further averred that in case of failure of the defendant to submit 'C' forms, the plaintiff shall be burdened to pay Rs. 54,55,953.60/ alongwith the penalties and interest as may be levied by the authorities of CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 3 of 7 respective states.
6. It is further averred that after due receipt of the goods and completion of sale, the plaintiff repeatedly requested the defendant through telephonic communication and also through emails to make available the 'C' forms but the defendant has failed to provide 'C' Forms intentionally till date. That the 'C' Forms are required to be produced by the plaintiff before the Maharashtra Sales Tax Department within prescribed time limit to avoid tax liability, which the plaintiff is not liable to pay.
7. When the defendant failed to fulfill its legal obligations to provide 'C' Forms to the plaintiff, the plaintiff was constrained to issue to the defendant the legal notice dated 30.08.2017 calling upon the defendant to provide the required 'C' Forms , however, the defendant despite service and knowledge of the said legal notice, failed to supply the 'C' Forms or make any payment. Hence, the present suit.
Court Proceedings
8. After institution of the suit, summons were issued to the defendant.
Ld. Counsel for the plaintiff filed tracking report as per which defendant has been served on 07.12.2018. As none appeared and no written statement was filed on behalf of the defendant, hence defendant was proceeded exparte vide Order dated 15.02.2019.
CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 4 of 7 Evidence Led By Plaintiff
9. Statement of Sh. Kishore Sahoo, Authorised Representative of the plaintiff company in lieu of Exparte evidence was recorded. The plaintiff relied upon the following documents : S. No. Documents Exhibit
1. Board Resolution dt. 06.02.2018 Mark A (deexhibited from Ex PW1/1)
2. Certificate of registration of defendant Ex PW1/2
3. License of beer bond warehouse Ex PW1/3
4. Invoice no. AL 17 dated 15.06.2016 Ex PW1/4 (OSR)
5. Invoice AL 18 dated 15.06.2016 Ex PW1/5 (OSR)
6. Invoice AL 19 dated 15.06.2016 Ex PW1/6 (OSR)
7. Invoice PL 55 dated 30.11.2016 Ex PW1/7 (OSR)
8. Books of account (ledger of plaintiff) Ex PW1/8 (OSR)
9. Notification of Maharashtra Govt. dated Ex PW1/9 30.09.2015
10. Receipt of receiving of the goods dt. Ex PW1/10 (OSR) 16.06.2016
11. Receipt of receiving of the goods dt. Ex PW1/11 (OSR) 16.06.2016
12. Receipt of receiving of the goods dt. Ex PW1/12 (OSR) 16.06.2016
13. Receipt of receiving of the goods dt. Ex PW1/13 (OSR) 30.11.2016
14. Email dt. 14.03.2017 Ex PW1/14
15. Email dt. 06.05.2017 Ex PW1/15 CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 5 of 7
16. Email dt. 08.08.2017 Ex PW1/16
17. Legal notice dt. 30.08.2017 Ex PW1/17 18. Suit Ex PW1/18
19. Certificate u/s 65 B of Indian Evidence Ex PW1/19 Act Decision and Legal Reasoning
10. The testimony of Sh. Kishore Sahoo, Authorised Representative of plaintiff company as PW1 alongwith documents proved on record remained unrebutted and unchallenged in absence of any cross examination by the defendant and there is no reason to disbelieve the same. On the basis of oral and documentary evidence especially invoices Ex. PW1/4 to Ex. PW1/7, books of account of plaintiff Ex. PW1/8, notification of Maharashtra Government dated 30.09.2015 Ex. PW1/9, receipts of receiving goods Ex. PW1/10 to Ex. PW1/13, emails Ex. PW1/14 to Ex. PW1/16, legal notice Ex. PW1/17 and certificate u/s. 65B of IEA Ex. PW1/19, I am satisfied that the case of the plaintiff stands proved against defendant on the scales of preponderance of probabilities.
11. Further, the suit is well within limitation as the transactions between the parties as reflected from the invoices belong to June 2016 and November 2016 and the present suit has been filed in July, 2018 which remained unrebutted and uncontroverted. Further, it is averred in the plaint that plaintiff is having its registered office at Okhla Industrial Area from where the plaintiff has been functioning CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 6 of 7 and the defendant had been dealing with the plaintiff at the said office which falls under the jurisdiction of South East Delhi, which averments have also remained unrebutted and uncontested, hence this Court has territorial jurisdiction to try the instant suit.
12. Accordingly, a decree of mandatory injunction thereby directing the defendant to give/supply the 'C' Forms against the sales transaction for the financial year 201617 to the plaintiff under the bills/invoices set out in Schedule I to the present plaint.
13. Decree sheet be prepared accordingly. Costs of the suit are also allowed in favour of the plaintiff and against the defendant.
14. File be consigned to record room.
Announced in the open (NEELAM SINGH) Court on 10.01.2020. Additional District Judge02(SE), Saket Courts, New Delhi.
CS - 969/18 M/s. Bridco Sales Pvt. Ltd. Vs. Temlin Dkhar pg. 7 of 7