M/s Caro Distributors vs The Board of Trustees

F.M. Reis, J

Heard Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants and Shri Y. Nadkarni, learned Counsel appearing for the respondent. The above Second Appeal challenges the judgment and decree dated 03.11.2010 passed by the Lower Appellate Court whereby the appeal preferred by the appellants challenging the refusal of interest by the learned Trial Judge, on the amount of VAT paid by the appellants came to be dismissed and the cross objection filed by the respondent challenging the decree of refusal of the said amount of VAT passed by the learned Trial Court came to be allowed.

Shri Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that according to the learned Counsel, the amount of VAT payable with regard to the supply of goods was not inclusive. The learned Counsel further pointed out that though at the time of the advertisement, the terms stipulated therein provided that the price to be offered for the goods was inclusive of all taxes, while submitting the tender, the appellants have mentioned that the amount payable was exclusive of VAT. The learned Counsel further pointed out that as the tender of the appellants has been accepted, it implies that the counter offer made by the appellants was accepted by the respondent and as such, the question of refusing to pay the amount of VAT paid by the appellants would not arise. The learned Counsel further pointed out that as the counter offer made by the appellants has been accepted by the respondent, it amounts to conclusive contract and as such, the respondent is liable to pay the amount of VAT paid by the appellants. The learned Counsel in support of his submissions has relied upon a judgment of the Apex Court reported in AIR 1981 SC 2084 in the case of Smt. Kavita V/s State of Maharashtra and Ors. The learned Counsel has taken me through the impugned judgment passed by the Courts below and pointed out that the learned Trial Judge has rightly appreciated the evidence on record and has come to the conclusion that the amount offered by the appellants was exclusive of VAT and that the Lower Appellate Court has erroneously interfered with such findings of the learned Trial Judge. The learned Counsel as such submitted that there are substantial questions of law that arise in the present Second Appeal which require consideration.

On the other hand, Shri Y. Nadkarni, learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel has taken me through the offer made by the respondent after opening of the tender at page 104 of the compilation which clearly provides in the term and condition no.5 that the amount payable by the respondent was inclusive of the tax. The learned Counsel has also taken me through the advertisement and pointed out that the tenders were called to stipulate the amount inclusive of all taxes which include VAT. The learned Counsel has also taken me through the deposition of PW1 at page 74 and pointed out that PW1 had admitted that "It is true that while delivering the material ordered by the defendants ( respondent herein ) in response to the orders for supply, we had not indicated that VAT would be charged on the value of the goods supplied to the defendants ( respondent herein )." The learned Counsel further pointed out that there was no counter offer made by the appellants which has been accepted by the respondent and as such, the contention of the learned Counsel appearing for the appellants to the effect that the amount payable by the respondent for the goods supplied by the appellants was exclusive of VAT has no substance. The learned Counsel has taken me through the proposed substantial questions of law framed by the appellants and pointed out that all the substantial questions of law are basically questions of fact which this Court cannot re-appreciate in exercise of its power u/s 100 of Civil Procedure Code. The learned Counsel as such submitted that there are no substantial questions of law which require consideration by this Court in the present Second Appeal. Having heard the learned Counsel and on perusal of the records, I find that the judgment of the Apex Court relied upon by the learned Counsel appearing for the appellants is not applicable to the facts of the present case. There is no silence attributed to the respondents which one could infer that there was a counter offer accepted by the respondent. In fact, as rightly pointed out by the learned Counsel appearing for the respondent while submitting the offer by the respondent after the tender of the appellants was opened, the respondent had categorically stated that the price would be inclusive of all taxes. The learned Counsel appearing for the appellants does not dispute the fact that such condition was mentioned in the advertisement which preceded the tender submitted by the appellants. The learned Counsel did not dispute that the inclusive of all taxes in the advertisement would imply that VAT was also to be paid by the supplier. Nevertheless, the contention of Shri Mulgaonkar, learned Counsel appearing for the appellants to the effect that there was a counter offer which has been accepted by the respondent cannot be curled out from the material produced on record. The learned Trial Judge has erroneously held that the appellants learnt that VAT was payable on the towels only after the offer was submitted by the respondent without realising that the tender for the towels was inclusive of all taxes. In any event, the Lower Appellate Court has appreciated the evidence on record and has come to the conclusion that no such counter offer was accepted by the respondent. The Lower Appellate Court has rejected the contention of the appellants that they assumed that VAT was not payable on towels taking note that when the supply order was made inclusive of taxes, VAT was inclusive in the price. The question of re-appreciating of evidence in exercise of its power by this Court in the present Second Appeal u/s 100 of CPC would not arise at all. There is nothing brought forward by the appellants to show that there was any misconstruction of the documents or that any specific material has not been considered by the Lower Appellate Court whilst deciding the cross objection filed by the respondent. On perusal of the substantial questions of law sought to be proposed by the appellants, I find that all the substantial questions of law would imply re-appreciating of evidence on record which is not permissible in law in a Second Appeal u/s 100 of Civil Procedure Code. Hence, I find no substance in the above appeal. The appeal accordingly stands dismissed.