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Madhya Pradesh High Court · body

2001 DIGILAW 516 (MP)

Rajendra Kumar v. NoshirwanandCo. Pvt. Ltd.

2001-07-18

S.B.SAKRIKAR

body2001
Judgment ( 1. ) DEFENDANT/appellant has directed this appeal against the judgment, and the decree dated 17. 7. 1976 passed in C. S. 12-B/93 thereby allowing plaintiffs suit for recovery of the additional cost of Premier 118 NE car sold to the appellant. ( 2. ) BRIEFLY stated the facts of the case are that-Plaintiff/ respondent is a private limited company under the Companies Act and having its registered office at A. B. Road, Indore. The plaintiff is a dealer in automobiles. In response to an advertisement published by the Premier Automobile Pvt. Ltd. (for short PAL), Bombay, the appellant made an application for booking of a Premier 118 NE car and deposited Rs. 11,000/- in advance with PAL. The appellant was given priority number on 24. 9. 1985. Initially the car was to be delivered at Kota but PAL acceded the request of appellant and agreed to deliver the car at Indore through respondent, its authorised dealer. In letter dated 27. 4. 1990 PAL intimated the appellant that his booking number is likely to mature by the 15th of January 1990 and requested the appellant to fill in queries made in the attached letter and directed to get in touch with the dealer. The appellant completed each and every formality and deposited the prevailing value of the car on 16,7. 1990. However, the car was delivered to him on 6. 9. 1990. After the delivery of car the respondent made a demand for payment of Rs, 16,401/-, on the ground that Central Government has revised the rate of excise duty and made it effective from 22,8,1990. As such the appellant is liable to pay the same, The appellant opposed the said demand, as such, the respondent filed a suit for recovery of the additional excise duty as imposed by the Central Government of Rs. 16,401/- together with interest at the rate of 12% per annum. The appellant/defendant, resisted the plaintiffs claim and filed his written statement, The contention of the appellant was that the contract in question with the respondent was completed and concluded on 16. 7. 1990, when he had paid full price including the excise duty existing on that day and, therefore, he is not liable to pay the amount as demanded by the respondent. 7. 1990, when he had paid full price including the excise duty existing on that day and, therefore, he is not liable to pay the amount as demanded by the respondent. Learned Trial Court framed the issues and on evaluating the evidence adduced on behalf of the parties, decreed the plaintiffs suit by the impugned judgment; hence this appeal. ( 3. ) I have heard Mr. G. M. Chaphekar, Sr. Counsel with Mr. Kailash Agrawal for the appellant and Mr. A. K. Sethi, learned Counsel appearing for the respondent. ( 4. ) LEARNED Counsel for the appellant contended that in compliance of the letter dated 27. 4. 1990 sent to the appellant by PAL the appellant has completed all the formalities and deposited the remaining cost of the vehicle including excise duty and other taxes as existing on that day; as such, the alleged contract of purchase of car was completed and concluded the respondent is not entitled to recover any additional amount on the ground that the Government has enhanced excise duty before the delivery of the car to the appellant. Learned Counsel also contended that till the date of delivery of the vehicle no additional amount by way of increase in excise duty effective from 22. 8. 1990 was demanded by the respondent. As such after the delivery of the car on 6. 9. 1990, the respondent is not entitled to get any additional amount as claimed in the suit. Learned Counsel relied on the decision of the Apex Court in case of Vikas Motors Ltd. v. Dr. P. K. Jain, VII (2000) SLT 115 = air 2000 SC 102 . 6. As against this learned Counsel for the respondent invited my attention to the condition No. 16 of the Ex. D. 1 with regard to the terms and condition for booking the Premier 118 ME bar published by PAL and submitted that by virtue of the aforesaid condition the appellant was bound to pay the price and the specifications as may be prevalent at the time of actual delivery, In view of the aforesaid condition contained in the terms and conditions of booking the car, the Trial Court has committed no error in decreeing plaintiffs suit for recovery of the excess of the excise duty existing on the date of the delivery of the said car. 7. 7. I have considered rival submissions of he learned Counsel for the parties and carefully perused the record as also the evidence adduced on behalf of the parties and available on record. On perusal it emerged that the appellant in compliance of the letter of PAL dated 27. 4. 1990, has completed all the formalities and deposited the prevalent price of the vehicle together with the excise duty and other taxes payable on 16. 7. 1990. On perusal it also that after completing the formalities and payment of the price of the vehicle together with taxes on 16. 7. 1990, the car was delivered to the appellant on 6. 9. 1990. Till the delivery of the car the appellant was not informed or asked for payment of any additional excise duty imposed by the Central Government by notification dated 22. 8. 1990; as such, the contract of sale got finally concluded on receipt of full consideration on 16. 7. 1990 and delivery of vehicle on 6. 9. 1990 to the appellant. In view of the aforesaid facts available on record of the Trial Court, the respondent was not entitled to demand any additional amount with regard to the sale of the said car on the ground of increase in excise duty imposed by the Central Government on completion of the contract for sale of the alleged car. 8. On perusal of Condition 16 or the terms and conditions for booking of the vehicle in question it emerged that as per the aforesaid condition the car will be sold and delivered subject to such terms and conditions, price and specifications as may be prevalent at the time of actual delivery. In my considered opinion the aforesaid condition did not give any right to the respondent/plaintiff for recovery of any additional excise duty existing on the date or delivery or the car in question as there was no information or demand made on behalf at the respondent/plaintiff prior to the delivery of the vehicle to the appellant. As indicated above the contract of sale and purchase or the vehicle got completed and concluded on receipt of full consideration on 16. 7. 1990 and thereafter by delivery of the car to the appellant on 6. 9. 1990. On perusal of the facts stated in the plaint and the bill, copy of which is available on the record at Ex. 7. 1990 and thereafter by delivery of the car to the appellant on 6. 9. 1990. On perusal of the facts stated in the plaint and the bill, copy of which is available on the record at Ex. P. 8 (c) indicated that an enhanced bill for Rs. 2,38,711/- was for the first time sent to the appellant on 10. 9. 1990, much later from the date of delivery of the car to the appellant. As such, the respondent was not entitled to recover the additional amount from the appellant on the ground or increase in excise duty after the delivery of the car to the appellant. 9. In view of the facts and circumstances of the case on hand, in my considered opinion, the Trial Court has committed an error in allowing plaintiffs suit and passing a decree against the appellant for the recovery of the additional amount as demanded on the ground of increase of the excise duty ordered by the Central Government by Notification dated 22. 8. 1990. The impugned judgment and decree of the Trial Court cannot be allowed to sustain in view of the facts and the law applicable to the case on hand and deserves to be set aside. 10. As a result of the foregoing discussion, this appeal filed on behalf of the appellant, succeeds and it is accordingly allowed. The impugned judgment and decree of the Trial Court is set aside and the plaintiffs suit as filed against the appellant, stands dismissed. Parties are left to bear their own costs of the suit as also of the appeal. Counsel fee in this appeal as per schedule is allowed on certificate. A decree be drawn up accordingly. If a decretal amount is deposited by the appellant in the Trial Court, it be refunded to the appellant, after verification.