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2008 DIGILAW 632 (PAT)

Gujrat Apolo Equipments Limited v. State Of Bihar

2008-04-22

NAVANITI PRASAD SINGH

body2008
Judgment 1. The petitioner was unfortunate to have supplied hot mix plants to the Government of Bihar and that too in the decade when Government of Bihar was in great financial crisis. In respect of first consignment, as per agreement, he was paid substantial amount on inspection of the hot mix plants but the final payment of the balance amount on delivery and installation was not made. In support of this, petitioner has annexed several letters of the departmental authorities spreading almost a decade recommending payment and seeking financial allocation with no result. In the second consignment, the dispute is in relation to increase in the Central Excise Duty in between the contract date and the delivery date. In spite of recommendations and sanction by all concerned, again funds were not allocated for payment. These two grievances brought the petitioner to this Court in CWJC No. 11919 of 2003 which was disposed of by order dated 29.9.2004 (Ahnexure-6) directing the petitioner to first make a representation to the Secretary-cum-Commissioner, Road Constructions Department, Government of Bihar, Patna who would dispose of the same by a speaking order and if money was found due, the same would be paid. Petitioner made a detailed representation whereafter the impugned order was passed by the Secretary, Road Constructions Department being order dated 31.5.2005 (Annexure-8). Counter affidavits having been filed, I have heard the parties and with their consent, the writ application is being disposed of at the stage of admission itself. 2. So far as the first grievance is concerned with regard to balance payment, it would be seen from various annexures that no authority at any point of time at all disputed the claim of the petitioner. It is admitted that the petitioner delivered the goods which were used by the respondent-State. Now, by the impugned order, for the first time after almost ten years, the reason for rejection of the claim is given. It is said that the petitioner was to deliver the goods at a particular time which he could not. The delivery was delayed though undisputedly accepted without demur. Now for the first time, it is said after ten years that State would not pay because of delayed delivery. To me, this stand of the State is amazing and arbitrary on the face of it. When deliveries were made, there was no protest. The delivery was delayed though undisputedly accepted without demur. Now for the first time, it is said after ten years that State would not pay because of delayed delivery. To me, this stand of the State is amazing and arbitrary on the face of it. When deliveries were made, there was no protest. When funds were sanctioned and sought for, Department accepted the claims. Now after ten years, to take such a plea, would not be permissible. Had the petitioner been told at the time of delivery itself that he would be penalized for late delivery by such a substantial amount, the petitioner had an option not to deliver at all and refund all the money. But having accepted delivery without protest or any demur, now it cannot be said that balance payment which earlier could not be made because of non-availability of fund will not be made and appropriate as a penalty for delay. This is against the principles enshrined in Sec. 42 of the Sales of Goods Act. The respondents had in terms of Sec. 42 authority to reject the goods, refuse to accept them or accept them conditionally subject to penalty for delayed payment. Nothing like that was done. The acceptance was, thus, unconditional. If that be so then in law, the petitioner is entitled to full payment on that account and the order to that extent cannot be sustained. 3. Coming to the second that is with regard to enhancement of Central Excise Duty in between the contract and the delivery time, in my view, it does not lie in the mouth of State which is a part of democratic Government to deny the just claim of citizens for in a Democratic Society governed by rule of law, State must do what is just and fair. State cannot benefit out of an unanticipated increased statutory taxation and put a citizen to loss. That, in my view, would be unjust. 4. On behalf of State, it is submitted that the contractual price was inclusive of tax. In my view, that makes little difference as inclusive of tax presupposes tax as leviable on the day when contract is entered. A subsequent statutory increase is neither anticipated nor visualized but when it happens the answer lies in Sec. 64A of the Sales of Goods Act. 5. In my view, that makes little difference as inclusive of tax presupposes tax as leviable on the day when contract is entered. A subsequent statutory increase is neither anticipated nor visualized but when it happens the answer lies in Sec. 64A of the Sales of Goods Act. 5. I am fortified by the principles as enshrined in Sec. 64A of the Sales of Goods Act which clearly stipulates that unless a different intention appears from the terms of the contract in event of any tax of the nature described in sub-sec. (2) which includes Excise Duty being increased or decreased after making the contract without stipulation as to the payment of tax if such tax is increased thereafter, the same has to be reimbursed by the party. The principle is that no person shall gain or lose by variation of statutory taxation. In the present case, all authorities had accepted the liability and sanctioned payment but now after almost a decade the State seeks to deny legitimate payment which became due only by virtue of increase in Central Excise Duty. 6. I hold that the action of the State in denying the same is not valid in law and cannot be countenanced. 7. In the result, the impugned order of the Secretary is quashed and the respondent-State is directed to make good the payments as claimed by the petitioner. 8. The payment should be made within a period of two months from today. In case the same is not made within a period of two months, the same shall be paid alongwith interest at the rate of 6% per annum from the time it was due. 9. The writ application, with the aforesaid direction, is allowed.