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TMI Blog2025 (4) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... d 02.12.2023 [impugned judgment] in CS(COMM) 751/2021 captioned ABS India Private Limited v. ABC Infosystems Private Limited. In terms of the impugned judgment, the learned Commercial Court decreed the aforesaid suit for a sum of Rs. 9,54,094/- along with simple interest at the rate of 7% per annum from 01.01.2020 till its realization in favour of the respondent [hereafter the plaintiff] and against appellant no. 1 [ABC Infosystems Private Limited - hereafter the defendant]. 2. The learned counsel for the defendant has confined the present appeal for assailing the impugned judgment on two grounds. First, that the suit was barred by law as the plaintiff had not engaged with the defendants in a pre-institution mediation as mandated under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be delivered to the Stores Officer, Central Stores Unit, Directorate of Purchase & Stores, B.A.R.C., Trombay, Mumbai. In terms of the purchase order, 80% of the total purchase value was required to be paid before delivery; 15% was required to be paid through post-dated cheques; and the remaining 5% was to be adjusted from the bank guarantee and would be deposited in a bank as a fixed deposit, which could be encashed by the plaintiff after expiry of the warranty period of three years from the date of the purchase order. The plaintiff claimed that the agreed amount was inclusive of Central Sales Tax [CST] and the defendants had agreed to provide Form-C in order to enable the plaintiff to avail concessional rate of CST. The plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had supplied the goods. The defendants claimed that the plaintiff had assured the defendants that it would issue a credit note on account of charging increased prices, but had not done so. It also claimed that the suit was liable to be dismissed for non-compliance of the mandatory provisions and Section 12A of the CC Act. On the basis of the rival pleadings, the learned Commercial Court had framed the following issues: "1. Whether the plaintiff is entitled to recovery of Rs. 9,54,094/- along with interest from the defendant as alleged? OPP 2. Whether there is no cause of action in favour of the plaintiff? OPD 3. Whether suit is bad for misjoinder of necessary parties? OPD 4. Whether the suit is time barred? OPD 5. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment as agreed. There is no cavil that the defendant had agreed to receive the same. The supply was in accordance with the purchase order [Ex.PW1/1], which clearly specified the equipment, the unit price as well as the total price of the said equipment. It is necessary to note that the purchase order unambiguously provided that the price of Rs. 1,13,16,000/- was inclusive of taxes. The terms and conditions also clearly provided that "2. Taxes: CST Inclusive & Form-C will be provided". 15. The plaintiff had, accordingly, raised an invoice [Ex.PW1/2] for a sum of Rs. 1,13,16,000/-. The invoice clearly reflected the price of the equipment as Rs. 1,10,94,117.20 and "Central Sales Tax 2% - 2016-17 Against Form-C" as Rs. 2,21,882/-. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax of Rs. 4,36,314/- along with interest at Rs. 1,83,251/- was issued by the Commercial Tax Officer. PW1 had also proved the list of customers that had not issued Form-C and the differential value of the tax assessed on that count. The said list indicates that the differential tax as assessed included an amount of Rs. 3,88,294/- being the differential tax payable on account of non-furnish of Form-C by the defendant. 19. The plaintiff had applied for waiver of penalty and interest and also produced an order of waiver dated 29.08.2019 passed by the Commercial Tax Officer, whereby the arrears of interest amounting to Rs. 1,83,251/- were waived on the plaintiff paying the differential tax of Rs. 4,36,314/-. 20. The plaintiff has, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Form-C was provided by the defendant to the plaintiff as claimed. Producing Form-C, at this stage, is of little assistance to the plaintiff as the plaintiff has already entered into a settlement for payment of the differential tax for seeking waiver of the interest on the said sum as demanded by the concerned tax authorities. 25. In view of the above, we find that the plaintiff is entitled to receive the amount of Rs. 3,88,294/- along with remaining consideration as differential tax along with the balance consideration. We concur with the learned Commercial Court that the plaintiff is entitled to the amount of Rs. 9,54,094/- as decreed. 26. The second question to be examined is whether the suit is liable to be dismissed for non-complian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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