B.K.RATHI, J. - (1.) THE respondent filed suit No. 733 of 2000 against the revisionists. The main relief claimed in the suit is for prohibitory injunction restraining the revisionists from imposing and recovering any mandi fee of all those transactions of the opposite parties in future by which it transfers stock of ghee to its various godowns/depots located in and outside the State of U.P. not coming within the territorial jurisdiction of revisionist No. 1 for the sale of such ghee at the said places where the said godowns are situated. The revisionists, who are defendant in the suit have yet not filed written statement. They made request for rejection of the plaint under Order VII. Rule 11 CPC read with Section 151 of CPC The said Application has been rejected by the learned Civil Judge (Senior Division), Aligarh by the impugned order dated 24.1.2002. Aggrieved by it. the present revision has been preferred.
(2.) I have heard Sri B.D. Madhyan, learned Counsel for the revisionists and Sri Bharat Ji Agarwal learned Senior Advocate for the respondent at length. The request for rejection of the plaint has been made by the revisionists under Clause (d) of Rule 11 of Order VIII CPC which provide that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Therefore, it is necessary to examine briefly the allegations made in the plaint. The opposite party is a company registered under the Companies Act and its factory is manufacturing many articles including ghee (regarding which there is dispute); for which C and F agents have been appointed by the opposite party for receiving, handling and delivering of stock of the ghee. It is alleged that the factory at Aligarh does not enter in to any kind of contract with regard to the sale of ghee with the party or parties outside the State of U.P. or in any city of U.P. There is no nexus between the transfer of ghee from the plaintiff factory at Aligarh and purchase thereof by the various purchasers; that a licence under Section 9 of U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (herein after referred to as "The Adhiniyam") has been obtained from revisionist No. 1; that Section 17 of the Adhiniyam provide for levy and collection of the market fee regarding the sales; that the opposite party collects the mandi fee for each sale made at Aligarh from the purchaser and deposit the same with the Mandi Samiti. Aligarh and is also Issuing Form -9 -R to the purchasers. However, when the goods are sent to C and F agents by stock transfer, then on those transactions no mandi fee is payable by the plaintiff as that transactions is not a sale at Aligarh or in the State of U.P. The reference has also been made in the plaint regarding the filing of the certain writ petitions in this Court and in the Hon'ble Supreme Court. The writ petition No. 6483 of 1995 was filed in the High Court by the opposite party regarding the levy of the fees in which the order was passed that revision under Section 32 of the Adhiniyam should be filed before Director, Mandi Parishad. ft was further provided that in case the Director direct that the mandi fee is not payable, the amount deposited shall be refunded with interest @ 12%; that, therefore, the respondent filed revision under Section 32 of the Adhiniyam which was dismissed and thereafter, the respondent moved an application for amendment in the writ petition in this Court and challenged the decision of Director, Krishi Utpadan Mandi Samiti. That Writ petition was dismissed by order dated 10.10.1996; that Special Appeal was preferred by the plaintiff before the Apex Court and the Apex Court has passed the following order on 25.3.1998 : "If the trader makes the payment without demur, the matter ends and the assessments finalized. But in case he docs so and raises protest, then the assessment shall be taken to be the provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and provisional assessment has been made, a time frame would be needed to devise making the final assessment. We, therefore, conceive that it iniately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that the entire transaction in that respect if over, enabling the aggrieved party, if any to challenge the final assessment in the manner provided under the afore act or under the general law of the land in appropriate form". (emphasis given)
(3.) THAT in compliance of the order of the Hon'ble Supreme Court objections were fled which were rejected and the mandi fee has been assessed. Therefore, according to the direction of the Hon'ble Supreme Court, the right to realise the tax is being challenged under the general law by the Civil Suit.;