Vijender Jain, J. (Oral):— This appeal arises out of the judgment passed by learned Single Judge in suit No. 2870/88 whereby the application of the appellant for leave to defend was dismissed. Learned counsel for the appellant has contended that the plea regarding the sales tax which was realised by the respondent was a triable issue. It has also been contended that now the appellant is in a position to supply Form-C to the respondent arid, therefore, there is another triable issue. These submissions of the learned counsel for the appellant, in our view, are without any merits and have to be rejected at the threshold itself. Once a suit has been filed under order XXXVII of the C.P.C invoking summary procedure as prescribed by the legislature, it is the application filed by the defendant in the suit which must disclose the triable issues. Briefly stating the facts are that tenders were invited by the appellant for supply of 1,21,315 wooden crates at various godowns/offices of the appellant at agreed rate of Rs. 148/- per wooden crate. Respondent got the contract and supplied 85,540 wooden crates from time to time. The total amount to be paid by the appellant was Rs. 1,26,59,920/- plus central sales tax which was to be charged @ 10% on the total sale.
2. The claim of the respondent was that while charging the sales tax inadvertently the same was charged @ 4%; whereas the central sales tax was 10%. On this account, the respondent had claimed a sum of Rs. 7.59,595.20/- on account of balance 6% of central sales tax. This claim was made by the respondent on account of inability of the appellant to supply Form-C declarations in spite of repeated demands by the respondent. A legal notice was served by the respondent on the appellant in June, 1986 raising a demand of Rs. 4,06,044.38P along with interest @ 18% per annum. In August, 1987, defendant No. 3 i.e appellant before us paid a sum of Rs. 2,50,000/- thereby leaving a balance of Rs. 1,56,044.88/-. In the application for leave to defend, the appellant took the stand that the appellant has never refused to issue the declaration in Form-C. It was further contended on behalf of the appellant before the learned Single Judge that the amount of Rs. 7,59,595.20/- as claimed by the respondent towards central sales tax liability was based on erroneous calculation; whereas in the affidavit filed by the appellant, the stand of the appellant was that they were unable to furnish the declaration in Form-C to the respondent. The reason given in the said affidavit by the appellant was that the regional office of the appellant was at Jaipur which was registered under the Sales Tax Act and they had applied for amendment of Certificate of Registration with the request to include the purchase of wooden crates by the appellant in the Certificate. That application of the appellant was disallowed by the concerned C.T.O and against the said order the appellant preferred a statutory appeal which was also dismissed. That application was eventually allowed on September 26, 1986 giving sanction from the date of application i.e September 12, 1984. Learned Single Judge took note of the fact that as per the terms and conditions of the contract, the appellant was to supply the wooden crates @ Rs. 148/- each exclusive of central sales tax. Clause 2 of the letter dated February 20, 1985 incorporating the terms and conditions in this regard is reproduced below:
“(a) The rate of Rs. 148/- (Rupees one hundred forty eight only) per wooden crates of Kail/deodar wood as accepted by us in our telegram No. STC-NCC-9(5) dt.21.1.1985 is an all inclusive rate except for the……… of Central/State Sales tax which should be paid by the Corporation as per the despatching railhead basis of ex-works loaded into trucks. It is left to the choice of the Indenting officer to choose or alter the mode of delivery in each case depending on his exigencies.”
3. From the perusal of the aforesaid clause it would be evident that the appellant was either to furnish the declaration in Form-C for the balance 6% of the central sales tax to the plaintiff i.e the respondent and failing which the amount equivalent to 6% was to be paid to the respondent. In view of the fact that no justification was shown as to why the amount was withheld when the number of wooden crates supplied to the respondent is admitted and the rate is admitted. The reasons shown for withholding the balance amount are not plausible reasons, and, as a matter of fact, against the record. Another reason which was cited before the learned Single Judge in the application for withholding the amount, as given in the affidavit, was that the amount of Rs. 51,732/- was withheld for the purchase of wooden “Ballis”. The learned Single Judge has rightly held that in fact defence, on the face of it, appeared to be without any basis as no material particulars with regard to the dates were given and under what provision of the contract the same could have been purchased by the appellant. As no triable issue was raised by the appellant, the defence raised was sham and illusionary. The learned Single Judge has rightly dismissed the application for leave to defend. We find no infirmity with the said order.
4. The appeal is dismissed.