J.N.Hore, J. - (1.) This is an appeal by the plaintiff LLoyd Bitumen Products Private Limited against the judgment and decree of dismissal passed by the learned Judge, 3rd Bench, City Civil Court in Commercial Suit No. 428 of 19762. Plaint instituted the said suit against the defendant Oil and Natural Gas Commission for recovery of central sales tax dues payable by the defendant to the extent of Rs. 23,163.21. The plaintiff case in short was that during the period between 1970 and 1971 the plaintiff, at the request of and pursuant to the orders in writing dated 23rd April, 1970 and 16th May, 1970 placed by the defendant at the plaintiff's place of business at premises No. 4A, Royd Street, P.S Park Sheet, Calcutta. sold and delivered to the defendant at Baroda and Ahmedabad from Calcutta diverse quantities of coal tar enamel and coal tar primer of agreed specification and at the agreed rates on terms and conditions that the defendant would submit to the plaintiff within a period of 30 days from the date of the receipt of the said goods or within. a reasonable time the requisite Central Sales Tax Declaration Form duly filled in and signed in respect of and covering the said goods so sold and delivered, fading which the defendant would be liable to pay to the plaintiff sums towards central sales tax at the rate of 10% on the price of goods. The plaintiff duly submitted to the defendant eight bills covering the sale goods and the defendant accepted the said bills without raising any objection and paid the sum inclusive of central sales tax at 3% as charged therein. The defendant failed and neglected and ultimately on or about 9th January 1976 refused to writing to submit to the plaintiff the requisite central sales tax declaration form in inspect of and covering the said goods on a frivolous pretext notwithstanding demands by the plaintiff. By and under two separate assessment orders dated 12.12.74 and 12.12 75 and consequential two separate demand notices dated 31.12.74 and 23,12;75 received by the plaintiff from the appropriate Commercial Tax Officer, the plaintiff was assessed to Central Sa1es Tax for the sale of the said goods. The plaintiff is entitled to recover from the defendant the amount of Central Sales Tax at the rate of l0% on the price of the said goods which after giving credit for 3% central sales tax charges in the eight bills referred to above and paid by the defendant amounts to Rs. 22,165.76. The plaintiff claimed interest at the rate of 6% per annum on the said sum and the total claim was laid at Rs. 23,163.21 including interest.
(2.) The defendant-respondent contested the suit by filing a written statement in which several legal and technical objections were taken and the claim of the plaintiff was denied. The defence case was that there was no written or implied contract between the parties requiring the defendant to furnish declaration in 'C' Form in lieu of 7% States Tax by and between the defendant and the plaintiff. The defendant by a letter dated 9.1.76 requested the plaintiff for a anal reply in the matter of free supply of 48.118 M.T. of Coal Tar Enamel as per promise of the plaintiff vide Letter No. I B P 037/ 3563 dated 19th October 1972 as the same was not till then fulfilled, and expressed willingness to consider thereafter about the submission of Declaration Form without prejudice. The plaintiff supplied defective materials and they agreed to replace such materials by a free supply of 48.118 M.T of coal tar enamel and when the plaintiff was not keeping their promise the said letter dated 9.1.76 was written by the defendant and the said cannot save the limitation. Free supply of 48 118 M.T of coal tar enamel by the plaintiff to the defendant as replacement to cover the shortage found in coating the material on the line pipe was a condition precedent for filing of Declaration Form 'C' by the defendant and as the plaintiff filed to fulfil that condition the question of furnishing 'C' Form by the defendant did not arise. The defendant also denied its liability to pay any interest on the amount alleged to be due. The jurisdiction of the City Civil Court to try and entertain the suit was also challenged. The defendant also took the plea of limitation inasmuch as the claim in respect of the bills submitted by the plaintiff to the defendant for Sales Tax was far beyond the period of 3 years from the date of supply.
(3.) Upon consideration of the materials on record the learned Judge has found that there was an implicit agreement between the plaintiff and the defendant that the defendant would bear the burden of Central Sales Tax at 10% in case they failed to supply the Sales Tax Declaration Form and that the defendant failed to submit the said Form in contravention of the agreement between the parties. The learned Judge has also found in favour of the plaintiff that the Court had territorial jurisdiction to try suit. The lower Court has also found in favour of the plaintiff that the plaintiff was entitled to recover a sum of Rs. 15,131.15 towards Central Sales Tax paid by the plaintiff. The learned Judge however, found in favour of the defendant that the suit was barred by limitation inasmuch as the claim was not preferred within 3 years from the date of supply of the goods or even from the date of payment of the last bill relating to the transactions. In the opinion of the learned Judge the fact that the defendant failed to furnish the Sales Tax Declaration arm as per agreement did not extend the period of limitation inasmuch as when, the Sales Tax Declaration Form was not supplied to the plaint, the plaintiff should have taken steps to recover the amount which wan payable on account of Sales tax by reason of the agreement within the period of limitation. The suit was accordingly dismissed with costs on the ground of limitation though other issues were answered in favour of the plaintiff.;