P MAHENDRA AND CO Vs. DENA BANK

JUDGEMENT

(1.) This appeal is by the plaintiff challenging the judgment and decree dated 31-3-1998 in OS No: 3302/88 on the file of the 17th Addl. City Civil Judge, Bangalore city.

(2.) The plaintiff is a dealer carrying on business in non-ferrous metal scrap and the defendant is a nationalised bank having its branch at K.G. Road, Bangalore. The defendant invited tenders for two consignments comprising of 1386 an 139 pieces of "Lead Ingots" weighing 35,178 and 6562 K.Gs respectively. Pursuant to that the plaintiff has filed his tender quoting the price of the lead ingots at Rs. 10. 60 per kg exclusive of taxes. The tender of the plaintiff was accepted by the defendant Bank Pursuant to this acceptance the plaintiff has paid the entire sale consideration calculated at the rate of Rs. 10.60 ps and paid a sum of Rs. 31, 855.95 ps. towards Karnataka sales tax at 6% plus surcharge, plus R.D.C or sales tax. According to the plaintiff has defendant Bank being not a registered dealer is not entitled to collect the same and therefore he has filed the suit for recovery of a sum of Rs. 32,805.95ps.

(3.) The defendant in its written statement has admitted the case pleaded by the plaintiff in its plaint except insofar as the right of the plaintiff to collect the sales tax. According to the defendant, the defendant being a nationalised bank, though not a registered dealer, is entitled to collect the sales tax. It is further pleaded that since the sales tax collected by the defendant has been paid to the State Govt. the question of refund to the plaintiff does not arise. In view of the above said averments, the Trial Court has framed the following issues: -