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2018 (3) TMI 558 - HC - Indian LawsWhether the suit is not maintainable under Order XXXVII CPC because in the agreement dated 6.5.2013 there is no amount which is stated of the sum of ₹ 38,45,961/- and which amount the plaintiff claims to have paid as the sales tax dues to the appropriate authority on account of failure of the defendant to supply the C-Forms? - Held that: - it is an undisputed position that in terms of Clause 8 of the agreement dated 6.5.2013 the defendant undertook to supply the necessary C-Forms to the plaintiff - on the one hand the agreement dated 6.5.2013 requires the defendant to submit the C-Forms and which C-Forms were not supplied, on the other hand the monetary value of the C-Forms though not specifically stated in the agreement dated 6.5.2013, however the crystallized amount of ₹ 38,45,961/- being the amount paid by the plaintiff to the sales tax department is not disputed by the defendant in the present leave to defend application - as per Clause 8 of the agreement dated 6.5.2013 the liability of differential tax will be borne by the defendant and this is in so many clear words provided in this Clause 8 - the contention of the defendant is rejected that plaintiff is not entitled to the amount of ₹ 38,45,961/- as claimed in the present suit. The subject suit is a commercial suit under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Section 35 CPC has been amended by the legislature with respect to commercial cases filed under this Act. Courts are mandated to impose actual costs as also costs under different headings including for the defendant frivolously defending the suit. Accordingly while dismissing the leave to defend application, and in view of the fact that plaintiff has been harassed by the frivolous defences of the defendant who in spite of his liability is failing to pay the requisite amount to the plaintiff, the leave to defend application is dismissed with actual costs. The leave to defend application is dismissed.
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