UTKAL GALVANIZERS LTD Vs. GRIDCO

JUDGEMENT

(1.) THIS Writ Application is directed against the Judgment and Order dated 8.10.2004 passed by the Learned District Judge, Cuttack in Misc. Appeal No. 121 of 2004 modifying the Order dated 3.8.2004 passed by the Learned Civil Judge (Senior Division), First Court, Cuttack in C.M.A. No. 168 of 2003 in the matter of an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure.

(2.) THE petitioner has filed C.S. No. 170 of 2003 in the Court of the Learned Civil Judge (Senior Division), First Court, Cuttack for declaration that the plaintiff -petitioner is not liable to pay sales tax as claimed by the defendant No. 4 i.e., the Commissioner of Commercial Tax, Orissa, Cuttack and that the Defendants 1 to 3 are liable to pay sales tax and for further declaration that in the event the tax is collected from the plaintiff -petitioner, the same be reimbursed by the Defendants 1 and 2 to the plaintiff -petitioner. One more prayer, which is relevant, is for declaration that the Clause 3 contained in purchase order with regard to sales tax be amended.

(3.) SHRI Manoj Mishra, the Learned Counsel appearing for the petitioner submitted that as per the terms of the agreement the petitioner is not liable to pay any sales tax and more over the petitioner had been exempted from payment of sales tax under the provisions of Industrial Policy Resolution. The exemption from payment of sales tax having been lifted by the State Government, the petitioner had to pay the tax to the Government. The petitioner paid the tax under the assurance that the same shall be reimbursed to it, but the said tax having not been reimbursed by Opposite Party No. 3, the suit had been filed. It was further contended that the agreement being silent about liability of the plaintiff for payment of sales tax, the Defendant -Opposite Party No. 3 is liable to reimburse the sales tax to the plaintiff -petitioner and, therefore, the Trial Court was justified in directing the defendants 1 and 2 from making any payment due to the Defendant -Opposite Party No. 3.