IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 AS.No. 19 of 2001() ---------------------------- OS.857/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF: ----------------------------------- T.K. SIMON, PROPRIETOR M/S.KERALA INDUSTRIES, KODENDANDATH, KALAMMASSERRY, ALWAYE. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT/DEFENDANT: ------------------------------------------ HINDUSTAN NEWS PRINT LTD., HAVING ITS REGISTERED OFFICE AT NEWS PRINT NAGAR P.O., KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE, ADV. SRI.E.K.MADHAVAN, SMT.UMA GOPINATH, SRI.V.KRISHNA MENON. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 19 OF 2001 = = = = = = = = = = = = = = = Dated this the 15th day of July, 2010. J U D G M E N T This appeal is preferred by the plaintiff in O.S.857/95 against the judgment and decree passed by the Principal Subordinate Judge, Kottayam. The suit is one for realisation of the amount under various heads and the plaintiff has been granted a decree for a sum of Rs.26,622.40. The plaintiff has challenged the finding on the ground that he had claimed Rs.16,589.84 which is paid as sales tax. The defendant on the other hand would contend that the liability to pay the tax is on the plaintiff and whatever tax he has paid has been adjusted and only the balance is adjusted in the final bill and therefore the plaintiff cannot claim any more amount under the head of sales tax. A.S. 19 OF 2001 -2- The documents are not very much there to pin point this but at the same time it has been deposed by PW1 that there is a notification to the effect that the sales tax is to be deducted from the total amount. It appears to be a correct statement in the light of the admission by PW1 in his cross examination. In page 11 of the deposition the specific case of the plaintiff is that as per the contract the defendant has to pay sales tax but it has not paid and that the plaintiff has deposited the same. It is very clear when he further deposes that, “........................................ ................................................ ............................................... ...............................................” So it is very clear that there was liability to pay tax by the plaintiff and the defendant has not undertaken anything with respect to the exclusion of payment of tax. It is deposed by A.S. 19 OF 2001 -3- the witness of the defendant that at the time of final settlement sales tax was deducted and when a receipt of Rs.8,705 was produced it was given credit to and reimbursed to the plaintiff. So as per the contract there is no exclusion of payment of tax and there is nothing to show that defendant was bound to pay tax. So the plaintiff has to pay tax and since he did not pay the tax the condition is to pay the tax and adjust in the final bill. 2. Learned counsel would rely upon Ext.A9 which would show that on 11.5.94 a certificate is issued to show that there was no tax liability but it was made clear that tax liability if any subsequently found will be demanded and collected at the time of final assessment. Unfortunately the final assessment does not see the light of the day and the plaintiff has not produced the same. Therefore the finding of the court below that the amount A.S. 19 OF 2001 -4- that has been paid as sales tax by the plaintiff has been adjusted and only the balance is deducted appears to be correct and in accordance with the terms of the contract. So on that point the plaintiff is not entitled to succeed. Therefore I do not interfere with the finding of the court below. The appeal lacks merits and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 19 OF 2001 -5- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 19 OF 2001 = = = = = = = = = = = J U D G M E N T 15th July, 2010.