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Patna High Court · body

2006 DIGILAW 189 (PAT)

State Of Bihar v. Shakti Tubes Ltd. Co.

2006-02-23

MANOHAR LAL VISA

body2006
Judgment MANOHAR LAL VISA, J. 1. This appeal is directed against the judgment and decree dated 18.01.2000 passed by Sub-Judge-I, Patna in Money Suit No. 131 of 1997 decreeing the suit on contest with cost. 2. Brief facts of the case are that M/s. Shakti Tubes Limited Company, sole respondent, filed Money Suit No. 131 of 1997 in the Court of sub-Judge-I, Patna stating therein that it is a company incorporated under the Companies Act and is Small Scale Industry and has been registered as such by Industries Department, Government of Bihar, and is manufacturing Mild Steel Black Pipes. Minor Irrigation Department, Government of Bihar of which appellants No. 2, 3 and 4 are Secretary, Additional Secretary and Chief Engineer, respectively issued notice inviting tenders for supply of 25 lakh metres of Mild Steel Black Pipes of 4" (100 mm) dia., nominal bore and of thickness 3.60 mm. In pursuance of notice inviting tender the respondent as well as others submitted tenders in prescribed proforma and tender of respondent was accepted and order was given to it for supply of 1 lac metres of Mild Black Steel Pipes in the manner that 30,000 metres pipes were to be supplied at Bettiah, 20,000 metres at Vaishali and 50,000 metres at Buxar. Appellant No. 4 issued supply order to respondent vide his letter No. 443 dated 17.03.1994 (Ext.2) on the terms and conditions noted therein. In pursuance of this order of supply an agreement was duly executed by respondent and appellant No. 4 on 18.03.1994 incorporating the terms and conditions of supply (Ext. 3). As per order of supply as well as agreement duly executed between the parties 90 per cent of value of materials supplied was to be paid on receipt of the materials and balance 10 per cent was to be paid after full verification of the same within one month from the date of receipt of the materials. Appellant No. 4 by his letter No. 483 dated 23.03.1994 (Ext.2/B) made certain amendments with regard to quantity of materials to be supplied at different places and by this amendment out of one lakh metres pipes, 40,000 metres were to be supplied at Bettiah, 20,000 metres each were to be supplied at Vaishali, Buxar and Bhagalpur. The other terms and conditions remained the same. The other terms and conditions remained the same. Respondent as per supply order issued by appellant No. 4 supplied Mild Steel Black Pipes within the stipulated time at the places mentioned in the order. But so far payment is concerned, the respondent received payment for materials supplied to Bhagalpur district in time except the central excise duty paid by respondent over the materials but payments of materials supplied at other districts respondent did not receive payment in time as per the terms and conditions of the agreement and there was delay in making payment. The case of respondent is that after supply of materials to the district of Bettiah, it submitted bills vide Bill No. 326/93-94 dated 31.03.1994 for Rs. 28,14,938.25 and Bill No. 329/93-94 dated 31.03.1994 for Rs. 7,02,993.15, the total being Rs. 35,17,931.40 as the cost of materials supplied as per the rate fixed in the order of supply followed by agreement and as per the terms 90 per cent of cost of materials supplied was to be paid on the date of receipt of materials supplied i.e. 31.03.1994 when the bills were submitted after supply of materials but the payment of 90 per cent was made to respondent by District Magistrate, Bettiah (Appellant No. 7) on 8.04.1995 and balance amount was paid on 19.06.1995. For the materials supplied to district of Buxar the respondent submitted bills vide Bill No. 328 dated, 31.03.1994 for Rs. 19,34,931.66 and Bill No. 330 dated 31.03.1994 for Rs. 14,81,661.99, total being Rs. 34,16,593.65 out of which Rs. 30 lacs was paid to respondent on 25.03.1995, Rs. 4 lacs was paid on 29.03.1995 and rest amount i.e. Rs. 16,593.65 was paid on 19.04.1995. For the materials supplied to district of Vaishali the respondent submitted Bill No. 321 dated 31.03.1994 for Rs. 15,96,218.62, Bill No. 325 dated 31.03.1994 for Rs. 12,69,957.54 and Bill No. 327 dated 31.03.1994 for Rs. 6,51,823.84, the total amounting to Rs. 35,18,000.00 but the payments were made in the manner that 15 Lakh was paid on 20.04.1994, 1 lakh was paid on 30.06.1994, 2 lakh was paid on 1.07.1994, 7 lakh was paid on 23.02.1995 and Rs. 10,18,000 was paid on 22.03.1995. 12,69,957.54 and Bill No. 327 dated 31.03.1994 for Rs. 6,51,823.84, the total amounting to Rs. 35,18,000.00 but the payments were made in the manner that 15 Lakh was paid on 20.04.1994, 1 lakh was paid on 30.06.1994, 2 lakh was paid on 1.07.1994, 7 lakh was paid on 23.02.1995 and Rs. 10,18,000 was paid on 22.03.1995. The case of respondent is that none of the amounts of the aforesaid bills was paid in due time as per the order of supply and agreement and there was sufficient delay by appellants in making payments and the respondent therefore being small scale industry became entitled for payment of interest on delayed payment according to the provisions of Sec. 4 of The Interest On Delayed Payments of Small Scale and Ancillary Industrial Undertakings Act, 1993 (hereinafter to be referred to as the Act) at the rate as provided in Sec. 5 of the Act. The case of the respondent was that because payment was not made within the time, therefore, appellants were liable to pay the interest on delayed payment, the total amounting to Rs. 39,21,729.00 as per detailed chart given in Schedule-I of the plaint and because in spite of repeated requests by respondent for payment of interest the appellants did not take any step the respondent filed CWJC No. 3757 of 1995 before this Court. It also served notice dated 18.06.1997 to appellant u/s. 80 of the Code of Civil Procedure (in short CPC) through its lawyer but in spite of it appellants failed to make payment of interest over delayed payments. This Court by its order dated 20.10.1997 permitted the respondent to withdraw the writ application with direction to file suit before the competent civil Court and also passed order to exclude the period spent before this Court from 26.05.1995 to 20.10.1997 for computing the period of limitation if application u/s. 14 of the Limitation Act is filed. The case of respondent was that although there was no limitation in filing the suit but it filed petition u/s. 14 of the Limitation Act. The case of respondent was that although there was no limitation in filing the suit but it filed petition u/s. 14 of the Limitation Act. The further case of respondent was that in Column 9 of tender it had been clearly noted that at the time of submitting tender there was no excise duty on 100 mm mild steel black pipes but in case it is levied in future by Government at the time of delivery it will be charged extra and during supply of pipes by respondent to appellants the Central Excise Department, Government of India imposed Excise Duty on M.S. Black Pipes and after supply in part made by the respondent the exit of pipes from the manufacturing place of respondent was allowed on payment of central excise duty and, therefore, respondent supplied the balance pipes to appellant after making payment of central excise duty amounting to Rs. 15,76,131.68. The respondent after making supply of materials demanded the amount of central excise duty which was paid by it from appellant No. 4 who agreed and accepted to make payment of the amount of excise duty to respondent and by his letter No. 930 dated 2.08.1994 (Ext.2/D), demanded the excise gate pass to verify the payment of actual amount of excise duty paid by respondent in respect of materials supplied and respondent accordingly submitted copies of duty paid including gate passes which were 68 in numbers showing payment of Rs. 15,76,131.68 as excise duty and since thereafter respondent was insisting orally and by writing letters for payment of amount of excise duty and since the assurances were always given to respondent for payment of excise duty, therefore, while filing CWJC No. 3757/1995 respondent did not include the amount of excise duty in his claim or in the plaint of the suit but because appellants refused to pay the amount of excise duty, therefore, respondent by amendment got the amount of excise duty included in the suit after serving notice u/s. 80 of the Code of Civil Procedure for claiming excise duty. On all these grounds respondent claimed decree for Rs. 39,21,729.00 as delayed payment interest, decree for Rs. 15,76,131.68 being excise duty paid by it, decree for interest from 1.11.1997 and pendente lite and future Interest till its realisation at the rate of 24 per cent compound interest with monthly rests. 3. On all these grounds respondent claimed decree for Rs. 39,21,729.00 as delayed payment interest, decree for Rs. 15,76,131.68 being excise duty paid by it, decree for interest from 1.11.1997 and pendente lite and future Interest till its realisation at the rate of 24 per cent compound interest with monthly rests. 3. Appellants appeared and contested the suit by filing written statement stating therein that suit as framed was not maintainable. The suit was barred for non Joinder of necessary parties, suit was barred by Special Relief Act and also barred by waiver, acquiescence and estoppel. The appellants in their written statement admitted that Minor Irrigation Department, Government of Bihar, had invited tenders for supply of 25 lakh metres of 4" dia. Mild Steel Black Pipes and respondent submitted tender which was accepted and respondent was given supply order for supply of 1 lac metres of 4" M S B Pipes to three districts namely, Bettiah, Vaishali and Buxar. They further accepted that as per the terms and conditions 90 per cent of payment of the value of materials was to be paid on receipt of the materials and balance 10 per cent was to be paid after full verification of the same within one month after receipt of the materials. 4. The further case of the appellants is that respondent did not supply the material In stipulated period and it supplied pipes to district of Bettiah on 4.04.1994. 1.04.1994, 3.04.1994 and 15.04.1994 and because by that time financial year had been closed and there was no fund available with the District Magistrate of Bettiah, he refused to take supply but in spite of the refusal by District Magistrate, Bettiah for supply of material the respondent supplied pipes and in this way respondent committed forgery. Further case of the appellant is that in spite of the fact that respondent had not supplied the pipes in stipulated time, however, full payment was made to respondent by District Magistrate, Bettiah after verification of quality of pipe etc. Further case of the appellant is that respondent supplied only 0.60 lakh metres within the stipulated time and appellant No. 4 had written a letter dated 24.03.1996 regarding non supply of the pipes as per agreement but in any case, the appellants had paid entire money after supply of materials and nothing is due. Further case of the appellant is that respondent supplied only 0.60 lakh metres within the stipulated time and appellant No. 4 had written a letter dated 24.03.1996 regarding non supply of the pipes as per agreement but in any case, the appellants had paid entire money after supply of materials and nothing is due. According to the appellants, in Para 17 of general condition of tender documents it is clearly mentioned that no claim for interest or damage shall be entertained against the department with respect of any money and balance or unsettled claim, difference of misunderstanding between Engineer-in-Chief on one hand and supplier on the other hand or with respect of any unavoidable delay on the part of the office in making periodical or final payment or in any aspects whatsoever. Besides this, respondent himself had given undertaking that in case it was given supply order for M S B Pipes against the tenders submitted and opened on 27.07.1993 it shall not claim Interest on delayed payment provided delay was reasonable. According to the appellants, respondent did not get any relief in CWJC No. 3757 of 1995 and claim of respondent is time barred and respondent is not entitled to get relief sought for. 5. On the claim of respondent as to excise duty the case of the appellants in their rejoinder dated 6.04.1998 to the petition of respondent dated 23.03.1998 filed under Or. 6, R. 17 of the Code of Civil Procedure for making amendment in the plaint by incorporating the claim of excise duty which has been treated as additional written statement of the petition filed by him on 29.07.1999 is that there was no contract between the parties that appellants will pay excise duty and Para 15 and 16 of agreement state that respondent was to supply 1 lakh metres MSB Pipes at the rate of 175.90 per metre including all taxes. Further case of appellants is that the aforesaid terms were accepted by respondent and he has already received amount of supplied materials at the aforesaid rate. So now there remains no due against the appellants. The further case of appellants is that in Para 6 of the special condition it is clearly mentioned that royalty and other taxes will be borne by the supplier at his own cost, therefore, the question of payment of excise duty by appellants does not arise. So now there remains no due against the appellants. The further case of appellants is that in Para 6 of the special condition it is clearly mentioned that royalty and other taxes will be borne by the supplier at his own cost, therefore, the question of payment of excise duty by appellants does not arise. Appellants have denied to have ever agreed or accepted to make payment of excise duty. According to them it was internal matter of department to inquire from the firm through gate pass but it never meant that department agreed to make payment of excise duty. Appellants have prayed for dismissal of the suit. 6. On the pleadings of the parties Court below framed a number of issues including whether the respondent is entitled for decree of interest on delayed payment, whether respondent is entitled for a decree of Rs. 15,76,131.68 being excise duty paid by the appellants against the materials supplied to them and for delayed payment interest over the amount, whether the claim of respondent was barred by limitation or barred by waiver, estoppel and acquiescence whether the respondent has got valid cause of action to sue the suit and to what other relief or reliefs he Is entitled to get. After considering the evidence adduced on behalf of the parties Court below decided all the aforesaid Issues In favour of respondent and decreed the suit on contest with cost. On the amount of bills barring two bills dated 20.04.1994 and 30.06.1994 for Rs. 15 lakh and Rs. 1 lakh respectively the payment of which was made by District Magistrate, Vaishali it allowed interest at the rate of 25 per cent per annum on delayed payment from 1.05.1994, passed decree for Rs. 15,76,131.68 being the amount of excise duty with Interest at the rate of 25 per annum from 1.05.1994 and decree for interest for pendente lite and future till the realisation of the aforesaid amount at the same rate. Being aggrieved by this Judgment and decree of the Court below appellants have preferred this appeal. 7. 15,76,131.68 being the amount of excise duty with Interest at the rate of 25 per annum from 1.05.1994 and decree for interest for pendente lite and future till the realisation of the aforesaid amount at the same rate. Being aggrieved by this Judgment and decree of the Court below appellants have preferred this appeal. 7. The facts that Minor Irrigation Department, Government of Bihar, issued notice inviting tender for supply of 25 lakh metres of Mild Steel Black Pipes, in reply to said notice respondent and other persons submitted tenders in prescribed proforma, tender of respondent company was accepted and order to it for supply of 1 Lakh metres of Mild Steel Black Pipes to the districts of Bettlah, Vaishali and Buxar but thereafter by amendment supply order to the districts of Bettlah, Vaishali, Buxar and Bhagalpur was made, supply order to respondent by appellant No. 4 was issued and agreement was duly executed between respondent and appellant No. 5 are admitted. It is also admitted that respondent company had supplied Mild Steel Black Pipes to different districts as per supply order, the materials have been accepted by appellants and entire payment of supplied materials has been made to respondent company. The case of respondent company is that so far supply of materials to Bhagalpur district is concerned, the payment was made in time as per terms and conditions of the agreement but for the supply of materials to Bettiah, Vaishali and Buxar payment was made after delay and respondent company being a small scale industry is entitled for payment of interest on delayed payment according to Sec. 4 of the Act. On the point of delayed payment the case of respondent-company is that as per the supply order 90 per cent of the cost of materials supplied was to be paid on the date of materials supplied or at least on 31.03.1994 the date of submission of bills after supply of materials and rest 10 per cent within one months thereafter i.e. latest by 30.04.1994 but for supply of materials to the district of Bettiah the payment was made on 8.04.1994 and 19.06.1995 in spite of submission of bills on 31.03.1994, for the district of Buxar payment was made on 25.03.1995, 29.03.1995 and 19.04.1995 against the bills submitted on 31.03.1994 and for the district of Vaishali payment was made on 20.04.1994, 30.06.1994, 1.07.1994, 23.02.1995 and 22.03.1995 against the bills submitted on 31.03.1994. 8. Sec. 4 of the Act as it stood when the transaction of supply of materials by respondent-company to appellants was made and even on the date of filing of the suit before its amendment by Act 23 of 1998 is as follows : "4. Where any buyer falls to make payment of the amount to the supplier, as required u/s. 3, the buyer shall, notwithstanding anything contained in any agreement between the buyer and the supplier or in any law for the time being in force, be liable to pay interest to the supplier on that amount from the appointed day or, as the case may be, from the date immediately following the date agreed upon, at such rate which is five per cent points above the floor rate for comparable lending. Explanation.- For the purposes of this section, "floor rate for comparable lending" mean the highest of the minimum lending rates charged by schedule bank (not being co-operative banks) on credit limits in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1945." 9. Sec. 5 of the Act prescribes liability of buyer to pay compound interest with monthly rests at the rate mentioned in Sec. 4 on the amount due to the supplier. 10. The dates of delayed payment of amount of materials supplied as stated by respondent company in Para 11,12 and 13 of the plaint have not been challenged by the appellants. 10. The dates of delayed payment of amount of materials supplied as stated by respondent company in Para 11,12 and 13 of the plaint have not been challenged by the appellants. They have also not challenged the fact that as per the order of supply 90 per cent of the cost of materials supplied was to be paid on the date of materials supplied and remaining 10 per cent was to be paid within one month thereafter. On this point the case of appellants is that because respondent company failed to supply entire materials within stipulated time, therefore, it is not entitled to claim interest on delayed payment. In Para 11 of written statement filed before the Court below, the appellants stated that respondent company had supplied 0.60 Lakh metres pipe within stipulated time and remaining quantity was not supplied within the stipulated time. In Para 18 of their written statement filed before the Court below the appellants stated that respondent company supplied pipe to the district of Bettia on 4.04.1994, 1.04.1994, 3.04.1994 and 15.04.1994 in six blocks namely, Majhaulia, Bagaha, Benipatti, Nautan, Bettiah and Ramnagar which is apparent from Schedule-A of the plaint. According to the appellants, respondent company violated the terms and conditions of agreement and supplied materials to Bettiah after financial year was closed and there was no fund available and respondent company submitted back dated bills and thereby committed forgery and cheating. They further stated that in spite of all the aforesaid facts entire payments have been made to respondent company. 11. So far the allegations of appellants as stated in their written statement filed before the Court below that respondent company submitted back dated bills and thereby committed forgery and cheating are concerned, in spite of their further averments in the aforesaid para of their written statement that to prove these allegations appellants would produce documents at the time of hearing of suit I find that no document to prove these allegations was brought on record by the appellants before the Court below and Uma Kant Mishra who was examined as witness on their behalf in his evidence also did not make any such allegation against respondent company. On the contrary in Para 4 of his evidence he has said that in spite of the fact that respondent company could not make supply till 31.03.1994 according to the terms of agreement full payment was made to respondent company. 12. Now the position remains that appellants received entire quantity of 1 lakh metres of pipes order for supply which was given to respondent company and appellants had also made entire payment to respondent company. It is true that case of appellants is that respondent supplied 60 per cent of pipes within stipulated time but remaining quantity of pipe was not supplied within time. As stated above, Annexure-A of written statement filed by the appellants before the Court below shows that at some places supply was made on 1.04.1994, 4.04.1994, 4.04.1994, and 15.04.1994. The stipulated time of supply was upto 31.03.1994. In this way, I find that at some places supply was made late by one day or two days or three days or a fortnight. In spite of it, supply was accepted by appellants and payments of these supplies have also been made. 13. Bindu Kumar Das (PW-2), an Executive officer of respondent company in his evidence has proved the letter dated 30.03.1994 issued under the signature of Shri R. Singh, the then DDC, Bhagalpur and has said that this letter was delivered by hand for supply of pipes in different blocks by 31.03.1994 meaning thereby within one day from the delivery of order. This letter is marked Ext. 2/0. Mr. Sidheshwari Prasad Singh, learned counsel appearing on behalf of the respondent company has argued that respondent company was so prompt in supply that within one day it supplied the materials to different blocks as mentioned in the aforesaid letter. Ext. 5 series is the gate passes received by respondent company after paying the excise duty for removal of goods from its factory. Ext. 5 series is the gate passes received by respondent company after paying the excise duty for removal of goods from its factory. All these gate passes show that excise duty was paid till 31.03.1994 meaning thereby that the goods were taken out from the factory till 31.03.1994, Bindu Kumar Das (PW-3) in Para 31 of his evidence has stated that as per supply order all the materials for supply were taken out till 31.03.1994 from the factory and were despatched and when the goods which were taken out on 31.03.1994 reached Bhagalpur on 1.04.1994 the concerned authorities were not receiving the same and he then met with Collector, Bhagalpur and submitted a letter stating the fact that although trucks loaded with pipes were despatched for Bhagalpur on and from 30.03.1994 and 31.03.1994 and some of the trucks reached their destination either in the night of 31.03.1994 or in the day of 1.04.1994 and some trucks were on the way to their destination and the concerned BDOs were not receiving the delivery of pipes and made request for instructing the concerned BDO to take delivery (Ext.2/N). He has further said that the Collector ordered the concerned officers to take delivery of goods after verifying the quantity from Challan (Ext.2/M). Exts. A/2 and A/3 are letters addressed to Collector, Buxar and DDC, Vaishali to Chief Engineer and Additional Secretary, Minor Irrigation Department, Government of Bihar and annexures of these letters show that period for supply of materials was extended. Notwithstanding all these facts it is an admitted position that appellants received entire material and they have made payment of the cost of these materials at the rate agreed to between the parties. Now the appellants cannot take the plea that because a part of goods were not supplied during the stipulated time, therefore, appellants are not liable to pay interest on delayed payment under the Act. 14. Sri Singh has submitted that Cl. 2 of the agreement provides penalty for non supply of materials within stipulated time and this penalty has to be recovered from the security deposited by supplier and Cl. 14. Sri Singh has submitted that Cl. 2 of the agreement provides penalty for non supply of materials within stipulated time and this penalty has to be recovered from the security deposited by supplier and Cl. 3 further provides that if the penalty becomes equal to security then the Department will have no option but to terminate the contract and giving the unfinished work to other supplier and in case of excess payment in getting the remaining work done the amount will be realised from the supplier. He has further submitted that Executive Engineer, Minor Irrigation, Investigating Division, Patna, appellant No. 5, by; his letter No. 97 dated 21.03.1994 (Ext. 2/A) giving reference of supply order (Ext.2) and enclosing the copy of agreement asked the respondent company to supply materials within stipulated period (31.03.1994) otherwise Secretary, Minor Irrigation Department, appellant No. 2, will have the right to forfeit the security money or Bank Guarantee deposited by respondent company. According to him the department accepted the supplies of materials of pipes by respondent company and thereafter made delayed payment of cost of pipe without invoking Cl. 2 and 3 of the agreement or forfeiting the security or Bank Guarantee deposited by respondent company therefore now the department is stopped from taking plea that because part of supply was not within the stipulated time, therefore, respondent company is not entitled to claim interest on delayed payment as provided under the Act. I find great force in the arguments advanced on behalf of the respondent company in this respect. When the remedy is provided in the agreement and Ext.2/A in case of non supply of materials within stipulated time, the appellants now cannot come up with a new case that because supply of part material was not made within the stipulated time, therefore, appellants are not entitled to pay interest as provided in the Act for the delayed payment. If supply of part materials was not within stipulated time the appellants had option to impose penalty or to forfeit the amount of security deposited by respondent company as per the terms of agreement or to refuse the acceptance of materials but instead of taking any such action appellants accepted the delivery of materials and thereafter made payment after much delay. In the result the respondent company has become entitled to claim interest under the Act for delayed payment and this right of respondent company is a statutory right which cannot be defeated on some excuse or other or on the ground that supply of part material was not within time particularly when appellants accepted the delivery of entire materials and thereafter had made payment of the cost of materials. 15. Mr. Mahesh Prasad, learned G.P. 3 appearing on behalf of the appellants has argued that Cl. 17 of General Conditions of tendered document provides that no claim for interest or damage shall be entertained against the department with respect to any money or balance or unsettled claim, difference or misunderstanding between the Engineer-in-Chief on the one hand and the supplier on the other hand or with respect of any unavoidable delay on part of the office in making periodical or final payment or in any other respect whatsoever. He has further argued that in view of own admission of the Director of respondent company in a letter dated 28.02.1994 addressed to Secretary, Minor Irrigation Department, Government of Bihar (Ext. A) that in case respondent company was given supply for mild steel black pipes against the tender submitted it shall not claim interest on delayed payment provided the delay is reasonable. 16. As stated above, appellants have not denied the fact that payment was delayed. By the aforesaid letter which is Ext.A the Director of respondent Company simply admitted that interest on delayed payment would not be claimed provided the delay was reasonable. Appellants have not produced anything to show that delay in making payment was for circumstances beyond their control and it was reasonable. So far Cl. By the aforesaid letter which is Ext.A the Director of respondent Company simply admitted that interest on delayed payment would not be claimed provided the delay was reasonable. Appellants have not produced anything to show that delay in making payment was for circumstances beyond their control and it was reasonable. So far Cl. 17 of General Conditions which has been referred by Shri Mahesh Prasad, learned counsel appearing on behalf of the appellants is concerned, I find that it does not help the case of appellants in avoiding their liability to pay interest on delayed payments u/s. 4 of the Act because provisions of section are very clear that where any buyer fails to make payment of the amount to the supplier, as required u/s. 3, the buyer shall, notwithstanding anything contained in any agreement between the buyer and supplier or in any law for the time being in force, be liable to pay Interest to the supplier on that amount from the appointed day or, as the case may be, from the date immediately following the date agreed upon. The words "notwithstanding anything contained in any agreement between the buyer and the supplier or in any law for the time being in force" are very significant. Although Cl. 17 of General Conditions does not straightway puts a bar to respondent company from claiming interest on delayed payment in any situation and it also refers to unavoidable delay on the part of office in making periodical or final payment but for the sake of argument if it be assumed that this clause in the agreement stopped the respondent company from making any claim of interest on delayed payment even then respondent company is entitled to claim interest on delayed payments u/s. 4 of the Act. I, therefore, find that so far the claim of respondent company for interest on delayed payment is concerned, respondent company has proved its case satisfactorily and Court below has rightly decided the issue framed in this regard in favour of respondent company. 17. I, therefore, find that so far the claim of respondent company for interest on delayed payment is concerned, respondent company has proved its case satisfactorily and Court below has rightly decided the issue framed in this regard in favour of respondent company. 17. About the rate of interest Explanation of Sec. 4 prescribes that "floor rate for comparable lending" mean the highest of the minimum lending rates charged by schedule bank (not being co-operative banks) on credit limits in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1945 and Sec. 5 of the Act provides that buyer shall be liable to pay compound interest (with monthly rests) at the rate mentioned in Sec. 4 on the amount due to supplier. 18. Respondent company examined its Director Dilip Kumar Churiwal (PW-2) who has said that respondent company is registered as small scale industry by Industries Department, Government of Bihar and it manufactures mild steel black pipes. Braj Kishore Prasad (PW-1), an employee of respondent company has proved the certificate granted by Managing Director, North Bihar Industrial Area Development Authority, Muzaffarpur declaring that respondent company is small scale industry. This certificate is marked Ext. 1. Ext. 11 is a letter dated 4.07.1995 with annexures addressed to respondent company by Chief Manager, Bank of India, showing that rate of interest charged on cash credit account of respondent company during the year 1992 was 21.25% per annum. This letter was originally marked Ext. in another case numbered as M.S. No. 153/97 and in this case it was marked as Ext. 11 by the Court below vide order dated 5.01.1999 when no objection on behalf of the respondent was raised in marking this letter as Ext. in the present case. The annexures of the letter is schedule of interest rate on advances inclusive of sales tax to all sectors including trade effective from 9.10.1992. 11 by the Court below vide order dated 5.01.1999 when no objection on behalf of the respondent was raised in marking this letter as Ext. in the present case. The annexures of the letter is schedule of interest rate on advances inclusive of sales tax to all sectors including trade effective from 9.10.1992. According to the respondent company, although this letter which was received in another case shows that interest charged on cash credit account of respondent company in the year 1992 was 21.25% per annum whereas in the present case supply of material was made in the year 1994 and bills were submitted on 31.03.1994 but payment was made in the year 1995 but then since letter of bank is dated 4.07.1995 and its enclosures are schedule of interest rate on advances to all sectors including trade effective from 9.02.1992 meaning thereby that no change in the interest rate thereafter till the date of despatching the letter by bank to respondent company had taken place and for this reason the Court below has rightly observed that this letter shows rate of comparable lending by bank on credit limits which was applicable in the year 1995. The appellants have not challenged the lending rate of interest applicable at the time of delivery of materials and thereafter at the time of submission of bills. They have not adduced any evidence nor they have suggested that rate of interest was (sic) respondent company. The Court below has allowed interest @ 24% per annum with monthly rests from 1.05.1994 and interest pendente lite and future has also been awarded at this rate. Mr. Singh has submitted that the Court below has awarded less interest because by calculation rate of interest comes to 26.25 but respondent company is not raising this point in the present appeal. In this view of the matter I find that the Court below has rightly fixed the rate of interest on delayed payment according to the provisions of the Act. 19. The next claim of respondent company is in respect of excise duty. It is an admitted fact that at the time of submitting tender there was no excise duty on mild steel black pipes. 19. The next claim of respondent company is in respect of excise duty. It is an admitted fact that at the time of submitting tender there was no excise duty on mild steel black pipes. The case of respondent company is that after supply in part the Central Excise Department, Government of India, imposed excise duty on mild steel black pipes and exit of pipes from manufacturing place of respondent company was allowed only on payment of central excise duty and respondent company supplied the balance pipes to appellants after making payment of central excise duty amounting to Rs. 15,76,131.68. In support of its case that it paid central excise duty the respondent company brought on record Ext. 5 series which are gate passes for removal of excisable goods from a factory or warehouse on payment of duty. These gate passes are of the period ranging from 26.03.1994 to 30.03.1994. The case of appellants is that rate quoted by respondent company for supply of pipes was Rs. 175.90 per metre inclusive of all taxes and this rate was accepted by appellants and is, therefore, contractual rate. Their further case is that para 6 of Special Conditions of the tender document (Ext.4) clearly states that royalty and other taxes shall be borne by the supplier at his own cost. 20. Shri Singh, learned counsel of respondent company, has argued that while submitting tenders on 27.07.1993 (Ext.4) the respondent company in para 1 stated that rates quoted included Bihar Sales Tax @ 4% and it further stated that no excise duty was included in the price because at that time there was no excise duty and it also stated that in case of future alteration in any tax/excise duty etc. the rates will be altered accordingly. He has further argued that in para 9 of the tender document respondent company again stated that presently there was no excise duty on 100 mm light class black pipes, but in case it is levied by the Government at the time of delivery it will be charged extra. His next argument is that Cl. 18 of General Conditions of tender states that all the papers which constitute the tender documents sold to the tendered, shall form part of the agreement and, therefore, it must be submitted intact, duly signed with quotation or rates and nothing should be detached. His next argument is that Cl. 18 of General Conditions of tender states that all the papers which constitute the tender documents sold to the tendered, shall form part of the agreement and, therefore, it must be submitted intact, duly signed with quotation or rates and nothing should be detached. According to him, tender which was submitted by respondent company clearly mentioned that there was no excise duty on 100 mm mild steel black pipes at the time of submission of tender and if it was levied by Government at the time of delivery it would be charged extra so this condition became part of agreement. From the agreement dated 18.03.1994 executed between the parties (Ext.3) I find that while quoting rates of pipes as Rs. 175.90 per metre inclusive of taxes the respondent company gave break up for this rate stating basic rate of pipe as Rs. 169.13 per metre and on this amount a sum of Rs. 6.77 was added as Bihar Sales Tax or Central Sales Tax @ 4%. In view of all these facts it is clear that at the time of submitting tender, its subsequent acceptance and thereafter at the time of execution of agreement between the parties there was no excise duty. It further appears that excise duty was levied subsequently by Government of India. Under these circumstances, Court below has rightly held that the argument of appellants that rate quoted by respondent company included excise duty also is without any merit. When at the, time of submitting tender there was no excise duty, respondent company gave break up of rate which included both the basic price and sales tax on that amount and it was clearly mentioned that at the time of submitting tender there was no excise duty and if it was levied by the Government at the time of delivery it will be charged extra, the question of accepting the arguments of, appellants that the rate quoted by respondent company at the time of submitting tender included excise duty does not arise. 21. 21. Now coming to the submission of appellants that Condition No. 6 of Special Conditions of tender provided that royalty and other taxes shall be borne by the supplier at his own cost, I find that ordinary meaning of this clause will be that royalty and other taxes which were applicable at the time of submitting tender were to be borne by suppler at his own cost. To construe this clause as including those royalty or taxes which were not applicable at the time of submitting tender but levied subsequently will amount to go beyond plain meaning of words used in this clause. Sri Singh has submitted that according to the provisions of Sec. 64A of the Sale of Goods Act, in absence of different intention appearing from the terms of contract, in the event of any tax of the nature described in sub-sec. (2) of Sec. 64A being imposed, increased, decreased or remitted the party who is benefited by such change will be entitled to take benefit according to it by the nature of subsequent change. Sec. 64A of the Sale of Goods Act reads as follows : "In contracts of sale, amount of increased or deceased taxes to be added or deducted. 1. Unless a different intention appears from the terms of the contract, in the event of any tax of the nature described in sub-sec. Sec. 64A of the Sale of Goods Act reads as follows : "In contracts of sale, amount of increased or deceased taxes to be added or deducted. 1. Unless a different intention appears from the terms of the contract, in the event of any tax of the nature described in sub-sec. (2) being imposed, increased, deceased or remitted in respect of any goods after the making of any contract for the sale or purchase of such goods without stipulation as to the payment of tax where tax was not chargeable at the time of making of the contract, or for the sale or purchase of such goods tax-paid where tax was chargeable at that time, (a) if such imposition or increase so takes effect that the tax or increased tax, as the case may be, or any part of such tax is paid or is payable, the seller may add so much to the contract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition; and (b) if such decrease or remission so takes effect that the decreased tax only, or no tax, as the case may be, is paid or is payable, the buyer may deduct so much from the contact price as will be equivalent to the decrease of tax or remitted tax, and he shall not be liable to pay, or be sued for, or in respect of, such deduction. 2. The provisions of sub-sec. (1) apply to the following namely - (a) any duty of customs or excise on goods, (b) any tax on the sale or purchase of goods." 22. In the present case, admittedly, at the time of contract for supply of pipes excise duty was not chargeable. The fact that it was imposed subsequently has been proved by the respondent company. There is nothing in the terms of contract that respondent company was to pay the subsequently imposed excise duty. In this view of the matter, respondent company is entitled to claim the excise duty which was subsequently imposed and was paid by it. The fact that it was imposed subsequently has been proved by the respondent company. There is nothing in the terms of contract that respondent company was to pay the subsequently imposed excise duty. In this view of the matter, respondent company is entitled to claim the excise duty which was subsequently imposed and was paid by it. Clause 6 of Special Conditions where it has been provided that royalty and other taxes shall be borne by the supplier at his own cost, cannot stop the respondent company from claiming excise duty, which it has paid, from appellants. Sec. 64A of the Sale of Goods Act is not only in respect of imposition or increase of the nature described in sub-sec. (2) but it is in respect of the decrease of such tax also. If Cl. 6 of Special Conditions of tender document is construed as a bar for implementation of provisions of Sec. 64A of Sale of Goods Act it is difficult to get the answer of a situation in which any tax of the nature described in sub-sec. (2) would have been decreased. I fail to understand how the appellants in that case would have interpreted Cl. 6 of General Condition because if decrease or remission in such a manner that decreased tax only or no tax, as the case may be, is paid or payable, the buyer may deduct so much from the contract price as will be equivalent to the decrease of tax or remitted tax, and he shall not be liable to pay, or be sued for, or in respect of, such deduction. I, therefore, find that by no stretch of imagination Cl. 6 of General Condition in which it was simply provided that royalty and other taxes shall be borne by the supplier at his own cost can be interpreted to have included the events of imposition, increase, decrease or remission of any deduction of the nature described in sub-sec. (2) in respect of any goods after making a contract for the sale or purchaser of such goods without stipulation as to the payment of tax where tax was not chargeable at the time of making of the contract or for the sale or purchase of such goods tax paid where tax was chargeable at that time. 23. (2) in respect of any goods after making a contract for the sale or purchaser of such goods without stipulation as to the payment of tax where tax was not chargeable at the time of making of the contract or for the sale or purchase of such goods tax paid where tax was chargeable at that time. 23. The case of appellants is that the claim of respondent company for excise duty is barred by law of limitation because it is the own case of the respondent company that it paid excise duty till 31.03.1994. The case of respondent company is that it made requests orally and by writing letters to appellants for payment of excise duty paid by it and appellants never refused to make payment. Respondent company has brought on record the letters which, according to it, were written to appellants for payment of excise duty and these letters, are marked Exts. 2/ G to 2/K. Further case of the respondent company is that because appellants never denied for making payment of excise duty, therefore, when respondent company filed CWJC No. 3757 of 1995 it did not claim the excise duty in that application and when this Court by its order dated 20.10.1997 permitted the respondent company to withdraw the writ application for filing suit before the competent Civil Court in accordance with law, the respondent company filed the suit under consideration along with petition u/s. 14 of Limitation Act because this Court had observed that if such petition was filed then the period spent before this Court from 26.05.1995 to 20.10.1997 would be excluded in calculating the period of limitation (Ext. 10). According to the respondent company when it filed suit it did not include claim of excise duty but when appellants finally did not make payment of excise duty, it got this claim also included in the suit by amending the plaint. 10). According to the respondent company when it filed suit it did not include claim of excise duty but when appellants finally did not make payment of excise duty, it got this claim also included in the suit by amending the plaint. It has further been submitted on behalf of the respondent company that when it made request to appellants for payment of excise duty which had already been paid by it, the Chief Engineer, Minor Irrigation Department, appellant No. 4, by his letter No. 930 dated 2.08.1994 asked the respondent company to make available clear and certified photo copies of gate passes so that the department can know the actual amount paid by respondent company as excise duty and in last para of this letter it was clearly stated that gate passes be made available within a week so that the matter in respect of payment of excise duty may be considered. This letter is marked Ext.2/G. The further case of respondent company is that in reply to this letter it sent copies of 68 gate passes, (Exts. 5 to 5/Z-41) showing payment of excise duty and thereafter the matter for payment of excise duty was examined by the department of appellants in a concerned file. The respondent company has brought on record copies of some pages of notings and orders of this file which are marked Ext. 12. The record of Court below shows that these noting and orders were marked Ext. 12 by order dated 22.09.1999 considering the fact that these documents were of the department of appellants and after service of notice to admit these documents which were noted in the petition dated 16.08.1999 and 2.09.1999 filed by respondent company the appellants failed to deny the same and the Court below under the provisions of Or. 12, R. 1, 2 and 3 of the Code of Civil Procedure, marked the documents as Exts. observing that documents were deemed to have been admitted by the appellants. This order of Court below which was passed after hearing both the parties and by which the same documents have been marked as Ext. 12 was never challenged by the appellants and therefore, it became final so far marking documents as Ext. 12 is concerned. From perusal of Ext. This order of Court below which was passed after hearing both the parties and by which the same documents have been marked as Ext. 12 was never challenged by the appellants and therefore, it became final so far marking documents as Ext. 12 is concerned. From perusal of Ext. 12 I find that the department of appellants examined the matter of payment of excise duty to respondent company at different levels and the noting of 17.03.1997 shows that State Minister and Cabinet Minister of the department were of the view that when excise duty had been imposed by the Central Government it was the duty of the State Government to pay the excise duty. This exhibit shows that on 24.05.1997 a note was addressed to the Chief Engineer, appellant No. 4, that the matter had been discussed with the Additional Secretary and file was ordered to be kept pending for final disposal of payment of excise duty and last noting which is dated 31.05.1997 shows that Additional Secretary was to be contacted later on. Thereafter there is no order on the matter. Mr. Singh has submitted that Ext. 2/G, the letter of Chief Engineer (Appellant No. 4), demanding copies of gate passes from respondent company for calculating the actual amount paid by it as excise duty and considering the matter in respect of additional amount spent by respondent orders of department on this matter as contained in Exp. 12 proves that appellants made acknowledgment of dues or respondent company in respect of payment of excise duty. 24. Mr. Mahesh Prasad, learned counsel appearing on behalf of the appellants, has submitted that Ext. 2/G and Ext. 12 cannot be treated as acknowledgment of payment of excise duty by appellants and if appellant No. 4 by Ext. 2/G asked the respondent-company to submit copies of gate passes showing the amount paid by it as excise duty, it was internal matter of department to inquire from respondent-company the amount of excise duty paid by respondent-company through gate passes and the appellants never agreed to make payment of excise duty because neither in Ext. 2/G, nor in Ext. 12 there is any promise to any excise duty. 25. Mr. Sidheshwari Pd. 2/G, nor in Ext. 12 there is any promise to any excise duty. 25. Mr. Sidheshwari Pd. Singh, learned counsel of respondent-company relying, upon decisions reported in AIR 1961 SC 1236 has submitted that requirement of acknowledgment is provided u/s. 19 relates to present subsisting liability and indicates existence of jural relationship between the parties and intention to admit such relationship can be implied and it is not necessary that statement on which the plea of acknowledgment is founded must be a promise. In the case reported in AIR 1961 SC 1236 it was held as follows : "(6) It is thus clear that acknowledgment as prescribed by Sec. 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be expressed but must be made in circumstances and in words from which the Court can reasonably inferred that the person making the admission intended to refer to subsisting liability as at the date of the statement. In construing words used in the statement made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally Courts lean in favour of a liberal construction of such statement though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or farfetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Sec. 19, and there is really no substantial difference between the parties as to the true legal position in this matter." In para 11 of the case reported in AIR 1971 SC 1482 the aforesaid principle has been affirmed. 26 Considering the principle as laid down in the aforesaid cases in respect of acknowledgment I find that Ext. 2/G and Ext. 12 can be treated as acknowledgment within the meaning of Sec. 19 of the Limitation Act. I, therefore, find that the claim of respondent-company is not barred by law of limitation and the Court below has rightly held it so. 27. Considering the entire materials on record I find no merit in this appeal. The appeal is, therefore, dismissed on contest. The judgment and decree of Court below are hereby confirmed. 28. In the circumstances of the case, there will be no order as to cost.