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Kasturi & Sons Ltd., having registered office rep. By its Principal Officer and General Manager v/s The State Trading Corporation of India Limited having registered office

    O.S.A.No.5 of 2004
    Decided On, 15 July 2008
    At, High Court of Judicature at Madras
    For the Appellant : K.V. Vani, Rangarajan, Advocates. For the Respondent: N. Sridharan, Advocate.

Judgment Text
(Prayer: Original side appeal preferred under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of Letters Patent against the order of this Court dated 10.2.2003 in C.S.No.950 of 1992.)

M. Chockalingam, J.

Challenge is made to a judgment of the learned Single Judge of this Court in C.S.No.950 of 1992 whereby the claim made by the appellant/plaintiff was rejected by dismissing the suit.

2. The plaint averments are as follows:

The plaintiff is the proprietor of The Hindu. They import newsprints. The defendant is the canalized agency for import of newsprints in India. The plaintiff had been purchasing newsprints from time to time against the newsprint allotments issued by RNI from the defendant on a running account basis. They had been lifting newsprints from the defendant's buffer stocks against their various authorization in respect of the above publications. The defendant had charged an ad valorem duty of 15% of the customs assessable value for the period 1.3.1981 to 28.2.1982 and a specific duty of Rs.825 per m.t. Towards customs duty from 1.3.1982 to 5.12.1984 based on the relevant customs notification. However, the levy of customs duty had been challenged before the Supreme Court by various purchasers including the plaintiff in WP No.2656-60 of 1984. The Supreme Court by its common order dated 6.12.1984, had upheld the contentions of the plaintiff. Pursuant to the same, the Government of India revised the customs duty and reduced the same from Rs.825 per m.t. to Rs.550 per m.t. Hence, the defendant is bound to refund the difference in duty. A total sum of Rs.21,65,496.09 excluding sales tax and surcharge on customs duty was due and payable by the defendant to the plaintiff. Out of the said claim, refund for a sum of Rs.13,68,445.13 has been paid by the defendant. After deducting the said sum, a sum of Rs.7,97,050.96 is still due and payable by the defendant. Due to categorization, a sum of Rs.1,66,207.06 is due and payable by the defendant in respect of amounts due on account of sales tax and surcharge on customs duty. The defendant is also liable to pay a sum of Rs.53,776.14 in respect of amounts due from the defendant on account of categorization which has been withheld for the period 1980-81. During the course of the business transaction, the plaintiff had been paying advance amounts to the defendant. The plaintiff had not been lifting stocks for the entire amount paid by them. Hence, the defendant is bound to pay a sum of Rs.10,16,411/- in respect of uplifted quantities for invoices from 31.12.1987 to 31.8.1991. Thus, the total dues from the defendant come to Rs.20,33,445.23. However, the plaintiff is due to the defendant a sum of Rs.7,70,441.88. After deducting this, a sum of Rs.12,63,003.35 is still due and payable by the defendant to the plaintiff. The plaintiff issued a number of letters. The defendant had issued reply letters. Since this is a commercial transaction, the plaintiff is entitled to claim interest at the rate of 21.6% per annum. Therefore, as on date a sum of Rs.12,63,003.35 towards principal and a sum of Rs.16,27,755/- towards interest, in all a total sum of Rs.28,90,758.35 is due and payable by the defendant to the plaintiff. Hence, the suit.

3. The suit was resisted by the defendant by filing a written statement with the following allegations:

The suit transaction relates to the period from 1.3.1981 onwards. As and when refunds of customs duty were received from the Collector of Customs, Madras, for the buffer stock, sales credit notes were issued in favour of the plaintiff to the extent admissible. Such credit note has been arrived at Rs.3,94,615.80. In addition to this, the plaintiff was eligible for refund of Rs.9,39,518.31 towards uplifted quantity for buffer sales. The total amount due to the plaintiff comes to Rs.13,34,134.10. But, the plaintiff were to pay a sum of Rs.9,86,548.18 to the defendant due for newsprint arrived by Vessel Banglar Mamta which was sold as High Seas Sales. Hence, the net amount due to the plaintiff comes to Rs.3,97,585.94. The defendant has already paid this sum to the plaintiff by cheque No.616365 dated 14.1.1992. In addition to this, the defendant had also made refunds to the plaintiff to the extent of Rs.3,99,660.01 under various heads. The claim of the plaintiff as regards sales tax and surcharge on the increased customs duty is not sustainable. The judgment of the Supreme Court relates only to refund of customs duty. As regards the claim on account of categorization, the same is not sustainable. The plaintiff has not produced any proof for payment of customs duty. The defendant is not liable to pay either principal or the interest as alleged by the plaintiff. Hence, the suit was to be dismissed.

4. On the above pleadings, four issues were framed. The parties went on trial. The Senior Accounts Officer of the plaintiff company was examined as P.W.1, and 20 documents were marked. The defendant examined the retired Marketing Manager as D.W.1; but, no documents were marked. The trial Court after hearing the arguments advanced and considering the evidence both oral and documentary made a judgment dismissing the suit. Hence, this appeal at the instance of the plaintiff.

5. The only point that arises for consideration is whether the appellant/plaintiff was entitled to the claim on the different heads made in the plaint.

6. The learned Counsel, advancing the arguments on behalf of the appellant, would submit that the learned Single Judge has disallowed the claim giving more weightage to Ex.P11 dated 1.9.1998 which was written by the respondent to the appellant; that after acknowledging the details contained in Ex.P13 written by the respondent to the appellant stating that they shall expedite the settlement at the earliest which is tantamount to an undertaking to settle the dues of the appellant, the learned Single Judge did not decree the suit in favour of the appellant; that when the appellant had set out the entire details and gave a list showing various invoices' references and quantities relating to different branches in Ex.P2, the suit should have been decreed; that though the respondent did not take the plea of limitation due to the fact that it is a running account, the learned trial Judge had observed that right to claim refund of sales tax is barred by time; that it is the duty of the respondent to claim sales tax refund since it is only a consequential relief claimed by the appellant in view of the reduction of customs duty; that the appellant had produced all the materials to the respondent, and despite the same, the respondent did not process the claim; that since it is a commercial transaction, the respondent is bound to pay interest as claimed by the appellant; that the various correspondences filed before the trial Court setting forth the details and also enclosures and invoices clearly prove the claim of the appellant in this regard; that the claim made by the appellant has been substantiated with documentary evidence; that the appellant restricts its claim amount to Rs.21,41,594/- in this appeal after adjusting an amount of Rs.7,49,164.95 paid by the defendant subsequent to the filing of the suit; that the appellant had vide Ex.P2 clearly given break up of the invoice details and also a copy of the invoice to the respondent to process the claim; that it is a 'running account basis'; that under the circumstances, though the suit has been filed in the year 1992, it does not preclude the appellant from making the claim in view of the account being running account, and hence, the judgment of the learned trial Judge has got to be set aside and the suit be decreed.

7. The Court heard the learned Counsel for the respondent on the above contentions.

8. No case is made out by the appellant/plaintiff in the considered opinion of the Court warranting any interference in the judgment of the learned Single Judge. The suit was laid for the recovery of a sum of Rs.28,90,758.35 which represented the alleged liability of the respondent defendant to an extent of Rs.12,63,003.35 and interest accrued thereon. The claim was made in the plaint on different heads namely the amount due on account of the price revision for the period 1990-91 namely Rs.301663.30, on account of customs duty refund due in respect of HSS made on account of the Sportstar namely Rs.104985.79, on account of customs duty refund due in respect of HSS on account of Survey of industry namely Rs.3507.02, on account of customs duty difference in respect of quantity cleared from 1.3.1981 but relating to 1980-81 entitlement namely Rs.355055.55 and the amount due to STC HSS Inv.16 of 30.9.1982 namely Rs.5230.22. After deducting and setting off the total amount of Rs.7,70,441.88 due to the defendant, the defendant was liable to pay a sum of Rs.12,63,003.35, according to the plaintiff. As could be seen, the plaintiff has made the claim firstly on the heads of refund of sales tax and surcharge on customs duty, secondly on the head of categorization and thirdly on interest. The very reading of the plaint would indicate that the plaintiff has rested the case that the plaintiff was making purchase of the newsprint from time to time from the defendant on a running account basis. There is no evidence on the side of the plaintiff worth mentioning to accept that the transaction was on a running account basis.

9. The plaintiff has specifically averred that the levy of customs duty at the rate now charged was challenged before the Supreme Court and by an order dated 6.12.1984, the Apex Court had reduced the customs duty. The learned Single Judge has incorporated the order of the Supreme Court reported in AIR 1986 SC 515 (Indian Express Newspapers (Bombay) Private Limited V. Union Of India) and has pointed out that there was no direction issued for any refund of the difference in the duty paid by the parties and to pay on the basis of the revised duty. The learned Single Judge has also pointed out that the Supreme Court did not quash the impugned notification, but only directed the Government to reconsider the levy of duty. Now, at this juncture, it is pertinent to point out that the defendant was not a party in that proceedings before the Supreme Court. However, as contended by the respondent's side, there was no direction for refund of any difference in the duty paid by the party, and hence, that contention was rightly rejected by the learned trial Judge.

10. As far as the different heads of claim stated above are concerned, the first head was the refund of the sales tax and surcharge on customs duty. It was contended by the defendant that they were not liable to refund any amount since the case referred to above and dealt by the Supreme Court was only with regard to customs duty refund and not the sales tax. That apart, the sales tax assessment for the relevant period was completed and cannot be reopened. They also relied on the decision taken by a Division Bench of this Court in T.C.No.775 of 1993 (The State Trading Corporation Of India Ltd., Chennai, V. The State Of Tamilnadu, Rep. By The Deputy Commissioner (Ct) Madras North Division). As per the decision, the contention of the defendant was accepted and the claim made by the plaintiff was rejected rightly.

11. As far as the categorization was concerned, it was the specific case of the plaintiff that the defendant was liable to pay the amount on account of the categorization for the period 1980-81. The defendant came with the plea stating that for that period, the plaintiff had not produced any proof of payment of customs duty, and even if the plaintiff was entitled to, their claim could not be processed. Further, it was also contended by the defendant's side that as per the plaint, the claim was referable to the period before the Supreme Court judgment, and therefore, they cannot make the claim based on the judgment of the Supreme Court. Hence, on the ground of categorization the plaintiff was not entitled to make any claim, and it has been rightly rejected by the learned Single Judge.

12. So far as the question of interest is concerned, there was a number of letter correspondences between the parties. Nowhere the plaintiff has made any claim in that regard. But, at last, there was a notice issued through the Counsel, and in that only, the claim was made. It remains to be stated that to order any interest, there must be a commercial transaction, and in the instant case, as rightly pointed out by the learned Single Judge, even assuming that the transactions were commercial between the parties, first of all, what was the claim to which the plaintiff is entitled to, must be made known, and only then, interest could be ordered. In this case, the pla

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intiff has not proved any part of the claim. 13. At the last, it is pertinent to point out that the plaintiff came forward seeking for the refund of the customs duty. Nowhere the plaintiff has filed any documents to fix its claim. Further, in the instant case, P.W.1 was the only witness examined. In the course of his evidence, he has categorically stated that as they found it unnecessary to file any document in which the defendant was a party, no running account statement had been filed by the plaintiff. Further, he has also deposed that the plaintiff has not filed any proof evidence in payment of customs duty in respect of which the suit claim has been made, as it was found to be unnecessary. Thus, it would be quite clear that there is no evidence to show that there was any running account, and further, there is no evidence to show any proof for the payment of the customs duty in respect of which suit claim is made. The only answer given by P.W.1 was that no evidence is necessary in that regard. In the absence of evidence, merely on the basis of the letter where the claim has been made, no decree could be granted, and it was rightly rejected by the learned Single Judge. This Court is unable to notice any reason to interfere in the judgment of the learned Single Judge. Hence, this original side appeal fails and the same is dismissed confirming the decree and judgment of the learned Single Judge. No costs.