Decided on January 10,1991

The New Snow View Transport (P) Ltd. Appellant
The National Hydro Electric Project Respondents


D.P. Sood, J. - (1.) THE Plaintiff a transport company entered into an agreement dated September 30, 1986 with National Hydroelectric Power Corporation Ltd. (Defendant) whereby three 44 -seater buses were hired by the Defendants for plying the same on various Project sites for a period of 2 years. The Defendants agreed to pay a sum of Rs. 1,050 per 100 kilometres per day covered by each bus and the said amount was to include passenger tax, surcharge thereon and expenditure on petrol, oil and lubricants etc At the material time the rate of passenger tax was 17% of the total freight charge plus 20% surcharge over and above. This continued right upto November 15, 1986. Thereafter the rate of tax charged was raised to 35% besides 20% surcharge w.e.f. November 15, 1986 Consequently, the Plaintiff had become liable to pay an amount of Rs. 3,87,880 as additional tax to the Himachal Pradesh Government. The Plaintiff performed its part of the contract and submitted the final bill, recoverable from the Defendant on October 1, 1988, to the tune of Rs. 8,81,045. It is alleged that the Defendants were duly informed about the enhancement of the tax and further that the Defendants not only wrongfully withheld the amount pertaining to the enhancement of the tax but also the hiring charges which they were liable to reimburse under the terms and conditions of the contract within 10 days of the submission of the monthly bills. It led to the filing of the claim by the Plaintiff. Similarly, there was also some increase in the rate of token tax w.e.f. May 1, 1981 to September 14, 1988. The claim for higher charges from the months of April 1988 to September 1988 had also not been cleared by the Defendants. The Plaintiff claimed the amount, referred to above on the following counts: (i) hire charges from the months of April 1988 to September 1988. Rs. 4,51,500 (ii) Interest at the rate of 15% with effect from April 1988 to Sept., 1988. Rs. 15,606 (iii) Difference of enhanced passenger tax and surcharge which had already been claimed. Rs. 3,87,818 (iv) Difference of enhanced token tax from Rs. 11,001 Rs. 2,200 to Rs. 4,400 per quarter for the period from May 1988 to September 1988. (v) Difference of enhanced monthly wages Rs. 15, 130 increased by the H.P. Government paid to three drivers. Total Rs. 8,81,043
(2.) THE Defendants having refuted the claim of the Plaintiff vide letter dated August 22, 1988, culminated into filling of the application under Section 20 of the Arbitration Act seeking direction to the Defendants to file arbitration agreement and to appoint an arbitrator for final adjudication of the dispute arising in between the parties The same has been registered as Civil Suit No. 96 of 1988 The suit has been resisted by the Defendants mainly on the ground that no dispute exists between the parties since enhancement in the rate of existing taxes was the sole responsibility and liability of the Plaintiff under the agreement. It was only in the event of new taxes being levied that the Defendants could be saddled with additional claim to that extent. Thus, the Plaintiff has no cause of action at all against the Defendants and the suit is not maintainable. The following issues were framed on August 30, 1990: 1. Whether there existed any dispute falling within the ambit of contract entered into in between the parties to the instant lis? O.P. Parties. 2. In case issue No. 1 is decided in the affirmative, whether it can be referred to the Arbitrator in accordance with Clause 30 1 of the agreement entered into between the parties Parties? O.P. 3. Relief.
(3.) THE parties adduced their evidence by way of filing affidavits. The photostat copy of the original agreement was also placed on the record by consent of the parties. The arguments have also been heard at length and I have also carefully gone through the record. Issues No. 1 and 2:;

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