MINING ENGINEER (RECOVERY) Vs. SHIVSHAKTI MARBLE PVT. LTD.

JUDGEMENT

(1.) THE Mining Department of the State has preferred this second appeal aggrieved by the judgment and decree dated 01.03.2011 of learned Additional District Judge, Fast Track, Rajsamand, in Civil Appeal No. 26/2009 - M/s. Shivshakti Marble Pvt. Ltd. vs. Mining Engineer (Recovery) & Anr., whereby the appeal filed by the plaintiff/respondent was allowed and the judgment and decree dated 29.09.2007 passed by learned Civil Judge (Jr. Division), Rajsamand dismissing the suit being Civil Suit No. 22/04 - M/s. Shivshakti Marble Pvt. Ltd. vs. Mining Engineer (Recovery) & Anr. filed by the plaintiff/respondent against the recovery, was set aside.

(2.) THE issue in brief was that the Assessee/plaintiff M/s. Shivshakti Marble Pvt. Ltd. filed an injunction suit against the purported recovery of Rs. 64,710/ - from the plaintiff/company on account of default in payment of royalty for removal of marble from the Gang Saw unit situated at Kelwa, in District: Rajsamand. The said demand comprised 3 parts, one for a sum of Rs. 8,450/ - raised on 28.07.1987 qua one M/s. Shivshakti Marble, raised against a proprietorship firm, which bears a similar name to that of plaintiff a limited company, second demand of Rs. 18,000/ - raised on 22.01.2002 and Rs. 38,2050/ - raised on 23.07.2002 raised against the limited company.

(3.) THE learned Civil Judge (Jr. Division), Rajsamand (for brevity, hereinafter referred to as 'trial court') while deciding the Issue No. 1 clearly held that even if the first demand of Rs. 8,450/ - raised on 28.07.1987 could be held attributable to another proprietorship concern i.e. M/s. Shivshakti Marble, the Exhibit A/1 to Exhibit A/23 clearly show that two other demands, viz. Rs. 18,000/ - raised on 22.04.2002 and Rs. 38,250/ - raised on 23.07.2002 pertained to the plaintiff -company, which was a private limited company and the demand notices and determination of lease dues were issued by the Mining Department in the name of limited company and, therefore, the entire demands could not be held attributable to the said proprietorship firm of Sh. Shyamlal Khatik. The suit was ultimately dismissed by the learned trial court.