- (1.) THIS is an application for revision by a defendant against whom a decree for Rs. 670 with costs was passed by the Second Civil Judge, Class I, Amravati, empowered under section 18 of the Central Provinces Courts Act, in Civil Suit No. 89 of 1952.
(2.) THE facts necessary for the decision of the application for revision are as follows :- THE defendant is a sub-dealer at Amravati of the dealer in Ford cars at Nagpur. On 18th July, 1951, the plaintiff placed an order for a new Fordson 10 H.P. Van with the defendant at Amravati. THE delivery of the van, it was agreed, was to be given at Bombay where the amount mentioned in the order form (Exhibit D-2) was to be paid against delivery. THE plaintiff was to take delivery of the van without its being painted and it was agreed that he would get it painted, according to his choice, at Bombay. Exhibit D-2, which embodies the contract between the parties indicates that the delivery price at Bombay was ... Rs. 9,775 to which was added the price of ... an extra passenger seat. ... Rs. 75 and sales tax (M.P.) ... Rs. 657 ----------- ... Total Rs. 10,507 and from this amount the defendant was allowed a rebate of Rs. 782, thus leaving a balance of Rs. 9,425. THE contract was governed by a number of terms on the reverse of the contract form, reference to which will be hereafter made. The plaintiff sued for a refund of the item consisting of sales tax. He founded his claim on the grounds that in fact no sales tax was chargeable and that he paid it under a mistaken belief that the defendant was entitled to separately charge him sales tax. He alleged that the levy of the sales tax was illegal under Article 286 of the Constitution of India, and therefore he was entitled to get the money back as it was wrongly realised by the defendant from him. The learned trial Judge held that it was true that no sales tax was leviable upon the transaction and that the plaintiff paid the sales tax under a mistake of fact. Consequently, it decreed the plaintiff's claim.
(3.) COUNSEL for the applicant urged that this was not a mistake of fact at all but that if the plaintiff had paid the sales tax, he paid it under a mistaken notion as to his legal rights since the law was on that date uncertain and was only settled later on by the decisions of this Court, and that of the Supreme Court in India in the Bengal Immunity case ([1955] 6 S.T.C. 446). He alternatively argued that in fact there was no mistake either of law or of fact. The price agreed was one and indivisible for supply of the car. Sales tax was only incidentally taken into account in arriving at it. But the agreement was to pay the final amount which must be paid in fulfilment of the contract. He also urged that the defendant had actually paid the sales tax to Government and it was very hard that he should be asked to refund it to the plaintiff. As shown above, the contract evidenced by Exhibit D-2 after making up an account proceeds : "I agree to pay you the above balance of Rs. 9,725 only (nine thousand seven hundred and twenty-five only) in Bombay at the time of taking delivery of the car there." This and this alone was the contract, the plaintiff agreeing to pay Rs. 9,725 in Bombay at the time of taking delivery of the car there. Delivery was admittedly given and the price paid. The contract therefore was complete. I am unable to see how a suit could lie afterwards for an item of accounting which preceded the making of the contract. The contract cannot be reopened so long as the mistake was not in the making of the contract but in some act or circumstance anterior to the making of the contract. I hold that if at all there was a mistake, the mistake was not such as could affect the making of the contract in the present case or a fact essential to the contract. In my opinion whenever a sale attracts sales tax that tax presumably affects the price which the seller who is liable to pay the tax demands, but it does not cease to he the price which the buyer has to pay even if the price is expressed to be X plus sales tax. A similar view was recently taken in an English case in Paprika Limited v. Board of Trade ([1944] 1 K.B. 327; [1944] 1 All E.R. 372).;