STATE OF HARYANA Vs. VIPIN KUMAR GUPTA

JUDGEMENT

(1.) THIS is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging the concurrent findings of facts recorded by both the Courts below wherein it has been held that the plaintiff-respondent who stood surety for payment of sales tax from defendant-respondent Nos. 2 and 3 had successfully withdrawn the same by writing a letter dated 6.6.1989. The afore-mentioned letter was received by defendant-respondent No. 3 as well as by defendant-appellant. It has further been shown that defendant-appellant had written a letter Ex. P.5 to respondent Nos. 2 and 3 to furnish fresh surety. It was further pointed out that the surety would not be discharged from its liability before 6.12.1989 because in the surety bond it was stipulated that surety can be discharged only after a period of six months from the date of letter of withdrawal. Hence, the surety was discharged on 6.12.1989. Recovery notice was issued by the department to plaintiff-respondents on 25.4.1990 i.e. much after the surety was discharged. Even the demand letter Ex. PX.C vide which demand was raised from respondent No. 3 was received by the firm on 26.12.1989. Therefore, no liability could be fastened on the plaintiff-respondent No. 1 for standing surety in respect of defendant-respondent No. 3. Reliance in this regard has been placed on a judgment of this Court in Pawan Kumar Gupta v. State of Haryana, 1999(2) (sic ?) 228.

(2.) IN respect of defendant-respondent No. 2, the Courts below have held that the defendant appellant had failed to prove that despite taking fresh surety in respect of defendant-respondent No. 2, previous surety of plaintiff- respondent No. 1, was still subsisting and, therefore, plaintiff-respondent No. 1 stood discharged as a surety as has been held by this Court in Ishar Singh v. Ram Saran Dass and others, AIR 1958 Punjab 337.

(3.) THE question of jurisdiction of the Civil Court to entertain such a suit would not be barred because defendant-State in the facts and circumstances of the case cannot be deemed to be acting within the four corners of the Haryana General Sales Tax Act, 1973. Therefore, the bar of Section 62 of the Act would not be attracted in the present case. Moreover objection under Section 62 has not been pressed by the defendant-appellant in either of the Courts below. Therefore, there is no substance in this appeal and the same is liable to be dismissed. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.