R. J. MOHAMED JACUB SAHIB Vs. INDIAN BANK LTD

JUDGEMENT

(1.) THIS civil revision petition is against the dismissal of a suit for recovery of a sum of Rs. 983 -16, as damages. The revision -petitioner who is the plaintiff in the suit sold certain goods to a buyer at Berhampur and the documents were negotiated through the Indian Bank at Erode. The buyer at Berhampur cleared the documents and took delivery of the goods. The price of the goods paid by the buyer has reached the plaintiff and there is no dispute regarding the same. However, the C form issued by the buyer at Berhampur did not reach the plaintiff at Erode and in the absence of the C form the plaintiff had to pay sales tax at 7 per cent, on the value of the goods as against one per cent if such C form was produced. The sum of Rs. 900 and odd claimed as damages is the difference between 7 per cent tax paid by the plaintiff and one per cent, which he was bound to pay if the C form was available. Plaintiff impleaded the Indian Bank as the first defendant and the State Bank of India through whom the Indian Bank put through the transaction as the second defendant. It is now found as a matter of fact that the Berhampur buyer delivered the C form to the branch of the State Bank of India at Berhampur when he cleared the documents. It is also an established fact that the said C form received by the State Bank at Berhampur did not reach the plaintiff through the Indian Bank at Erode.

(2.) THE trial court has in a way held that there was negligence on the part of the defendants in not delivering the C form to the plaintiff. But the claim of the plaintiff has been negatived on the ground that the commercial tax authorities had levied 7 per cent, tax (and not one per cent tax) not because the C form had not been produced but for some other cause. The appellate Judge says that the Berhampur buyer got an endorsement on his licence in respect of the commodity purchased by him only on 6 -2 -1959 though he is already a registered dealer in respect of other goods, and that he had issued the C form even on 2 -2 -1959 and that is the reason why the commercial tax authorities had disallowed the plaintiff's claim that only one per cent tax is leviable. The above reasoning of the appellate Judge is factually incorrect. It is true that the Berhampur dealer got an endorsement regarding the commodity in question, namely, oil, only on 6 -2 -1959. But it is incorrect to say that he had issued the C form even on 2 -2 -1959. The order of the Appellate Assistant Commissioner (Commercial taxes) Erode is one of the documents (Ex. A 1) in this case. That order extracts the communication from the Commercial tax officer, Ganjam I circle, Berhampur regarding this aspect. That communication clearly says that "from the state of accounts furnished by the Berhampur dealer it was seen that he had issued the C form on 7 -2 -1959 against bill No. 41 dated 2 -2 -1959 for Rs. 16,386, i.e., after the amendment of the certificate of registration held by him." It is thus clear that the reference to 2 -2 -1959 is only in respect of the bill drawn by the plaintiff and not in respect of the date of the C form issued by Berhampur dealer. The said C form had been issued only on 7 -2 -1959, that is the date after the said dealer got his licence endorsed for the goods in question. From the above facts it is clear that the plaintiff had to pay tax at a higher rate, namely, seven per cent, regarding the transaction in question only due to the absence of the C form and not for any other reason. There was no defect in the C form itself. As I said earlier, the banks concerned had failed to deliver the C form to the plaintiff in spite of the admitted fact that the Berhampur dealer had duly supplied the C form at the branch of the State Bank at Berhampur.

(3.) IN the present case, apart from what is stated in the written statement that the Bank at Berhampur had despached the C form to Erode, there is absolutely no evidence as to what really happened to the said C form. No witness got into box to swear to the circumstances under which the C form was lost. Therefore it is not possible to hold that the banks concerned in this case had taken all the reasonable care in delivering the C form to the plaintiff. Under such circumstances the plaintiff would be entitled to claim the damages which he has claimed in the plaint.