TMI Blog2014 (2) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... not the past liability. The words used in the acknowledgment must sufficiently indicate the circumstances of the jural relationship as that of her debtor and creditor and there must be a manifest intention to admit such jural relationship. The object behind the issuance of the Sales Tax Declaration Form is to avail of the reduce rate of sales tax. The Declaration Form does not require to contain the statements relating to the payments already made or to be made but can at best be a best piece of evidence relating to the contract of sale and the goods being sold and delivered at a price agreed upon. The letter which contains the Declaration Form does not indicate the acknowledgment of the liability as well as the admission of the existence of a jural relationship. There is no express intention of the Company to acknowledge the liability in a letter containing the Declaration Form. The present matter can be viewed from another angle as well. The petitioning creditor have grossly suppressed the fact that subsequently an agreement was entered into between the parties whereunder it was agreed that a sum of ₹ 29 lakhs, if paid by the Company, would satisfy the outstanding dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 that the Company was entitled to withhold or nullify the whole or a part of the said amount of Rs. 8.5 lakhs against any loss if the petitioning creditor did not commission and/or achieve the speed of the system. According to the Company, the petitioner could not achieve the requisite speed and, therefore, the entire sum of Rs. 8.5 lakhs were withheld in terms of the said agreement. Since the Company intended to purchase a terminal unit and the petitioning creditor offered the competitive price, the fourth order was issued by the Company and the payment is admittedly made by the Company. It would be relevant to record in this context that the Company petition does not reflect the factum of the said agreement and there has been suppression by the petitioning creditor. The Company tried to intertwined the aforesaid four purchase orders to avoid the provision of the Limitation Act by treating the last payment made against the supply under the fourth purchase order on 30 April, 2010. According to the Company, the three purchase orders can be clubbed together because of the agreement entered into in respect thereof but the fourth purchase order was independent and it cannot be corela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aipack Ltd Ors. vs- Ram Kishore Nagar Mal reported in 2007 (3) ARBLR 402 (Delhi). Lastly it is submitted that the petitioning creditor has grossly suppressed the fact relating to the execution of an agreement and the payment in terms thereof towards the full and final settlement of the claim and the winding up petition should be dismissed on that score as well. Admittedly the transaction in respect of the three purchase orders were issued and the last payment was made on 10.11.2009 for Rs.29 lakhs. There is no hesitation in my mind that the said amount was paid in terms of the said agreement dated 28th October, 2009 towards the outstanding dues. As indicated above, the winding up petition does not contain any averments relating to the agreements entered between the parties. The winding up petition has proceeded simply on the basis that the Company has failed and neglected to pay the price of the goods supplied in terms of the purchase orders even upon the commission of the system and the supply of the articles successfully and to the satisfaction of the Company. The petitioning creditor tried to link the fourth purchase order with the earlier three purchase orders to overcome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perspective, it is held: 11. The form prescribed under Section 8(4) (a) is in Form C which, in turn, is prescribed under Rule 12(1) of the Central Sales Tax (Regulation and Turnover) Rules, 1967, which provides that the declaration and the certificate referred to in Sub-clause (4) of Section 8 shall be in Forms C and D respectively. 12. it is now necessary to see the contents of a Form C . Form C is a declaration issued by the purchaser in order to enable the seller would be required to pay the higher rate specified in Section 6 of the Central Sales Tax Act. A Form C requires details such as the name of the issuing State, the office of issue, the date of issue, the name of the purchasing dealer, his registration certificate number and the date from which the registration was valid. It also requires an endorsement to the seller certifying that the goods ordered in the purchase order and supplied as per the bill/cash memo/ challan No. are for resale/use in manufacture/processing of goods for sale/use in mining/ use in generation/distribution of power/ packing of goods for sale/resale, as the case may be and that the same are covered under the purchase registration cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying a judgment of the Apex Court rendered in case of Valliamma Champaka Pillai vs- Sivathanu Pillai reported in (1979) 4 SCC 429 in these words: 29. For the view we take, we derive support from certain observations of this Court in Ganeshi Lal v. Joti Parshad. While discussing the nature and extent of a redeeming co-mortgagor s right to recover contribution from his co-debtor, this Court speaking through Chandrasekhara Aiyar, J., made these incidental observations which for our purpose are apposite: Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognized that where there are several joint debtors, the person making the payment is the principal debtor as regards the part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of redemption; he can call upon the co-mortgagors to contribute towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of contribution which the redeeming co-mortgagor has as. against the other co-mortgagor, amounts to a mortgage or not. 32. The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the nonredeeming co-mortgagor against the redeeming co-mortgagor. The Delhi High Court in case of Alliance Paints and Varnish Works Pvt. Ltd.,(supra) held in unequivocal terms that Sales Tax Declaration Form can never be construed as acknowledgment of the liability for extending the period of limitation for institution of the suit in these words: 15. In my considered opinion, the learned trial court clearly erred in construing the C Forms as acknowledgments of liability and in relying upon them for extending the period of limitation, inter alia, for the reason that when exemption from limitation is prayed for, it is essential for the plaintiff to very specifically plead such an exemption in the plaint. As a matter of fact, under Order VII Rule 6 CPC, it is obligatory, as a matter of pleading, to show the ground on which the exemption from limitation is claimed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Sales Tax Form i.e. the C form could have been treated as an acknowledgment of the goods received and would not fit within the definition of an acknowledgment as contained in Section 18 of the Limitation Act. The relevant extract of the judgment reads herein under- 32. Firstly, there is no acknowledgment of a present and subsisting liability. The said form can at the most be treated as an acknowledgment of the goods received under the contract of supply of goods and the price fixed to be paid for them. Whether or not payments were effected thereafter, or any amount remains due or outstanding cannot be inferred from the said C Form in the facts and circumstances of this case. Secondly, no intention to acknowledge a liability can be inferred from the contents of the said C form. Thirdly, one cannot establish a jural relation of debtor and creditor from the contents of the said C form. Thus, the essential requirements for a writing to constitute acknowledgment are missing from the document. (also see Hansa Industries (P) Ltd. v. MMTC Ltd. 2004 VI AD (Delhi) 222). 7. Learned Counsel for the petitioner points out that in the case of Alliance Paints and Varnish Works ..... X X X X Extracts X X X X X X X X Extracts X X X X
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