2004 PLP 849 (CLD)

(ii) Whether the proper court‑fee has not been paid? OPD. (iii) Whether the suit has not been filed by duly constituted attorney and as such it is liable to be dismissed? OPD. (iv) Whether the suit is barred by limitation? OPD. (v) Whether the plaintiff is estopped by his conduct from filing the suit? OPD. (vi) Relief. Evidence was led and the learned trial Court vide judgment and decree dated 3‑11-1994 decreed the suit while deciding Issue No. 1 in favour of the plaintiff. Being aggrieved, an appeal was filed, which too was dismissed vide judgment and decree dated 30‑6‑1997 hence, this regular second appeal.

3. Learned counsel for the appellant argued that the judgments and decrees of the learned Subordinate Courts are violative of the provisions contained in section 64‑A of the Sale of Goods Act 1930 and based on an incorrect exposition/interpretation of law and are not sustainable. He submitted that provisions of section 64‑A of the Sale of Goods Act, 1930 provide stipulations as to payment of duty or tax and duty or tax was not chargeable at the time of making the contract and the word "tax" means the tax payable under the Sales Tax Act 1951 therefore, section 64‑A provides a basic pre‑requisite as to absence of stipulation as to tax in order to enable a seller to ask for sue for any imposition of sales tax after the making of any contract but in the instant case the contract was with, stipulation in that it provided for a price "inclusive of all charges".

4. Further argued that "stipulation" according to Blacks Law Dictionary means "a material condition, requirement or article in an agreement. Accordingly while describing the price, the suffix " inclusive of all charges" clearly constituted a stipulation, therefore, through an erroneous interpretation, stipulation and charge the learned Courts below put incorrect construction upon section 64‑A ibid and the judgments and decrees are the outcome of erroneous exercise of jurisdiction. Therefore, "unloading and subsequent handling at destination will be the responsibility of the consignee" and the learned Courts below failed to properly comprehend the contract vis‑a‑vis section 64‑A \ibid and this jurisdictional error is to be manifested in the judgments passed by the learned Courts below is to be rectified.

5. Learned counsel for the respondent argued that there is difference in the definition of "Charge" and "Charges". The definition of "Charges" according to Blacks Law Dictionary is:‑‑ "The expenses which have been incurred or disbursements made in connection with a contract, suit or business transaction." And concurrent findings of both the learned Courts below are well‑reasoned and based in true appreciation of law on the subject‑matter, and cannot be interfered in second appeal.

6. I have heard the learned counsel for the parties and perused the record. It is clear from the execution of contract that no stipulation existed between the parties as C to the payment of sale tax as the sale talc was imposed on 29‑5‑1988 at the rate of 12.50%. The terms of agreement as reproduced below:‑‑ "This price will be Rs. 15.10% per bag delivered at the destination inclusive of all charges. Unloading and subsequent handling at destination will be the responsibility of the consignee." Section 64‑A of the Sale of Goods Act is reproduced below:‑‑ "The contracts of sale amount of increased or decreased duty to be added or deducted. In the event of any duty of customs or excise (or tax) on any goods being imposed, increased, decreased or remitted after the making of any contract for the sale of such goods without stipulation (as to the payment of duty or tax where duty or tax) was not chargeable at the time of the making of the contract, for the sale of such goods (duty paid or tax paid where duty or tax) was chargeable at that time:‑‑‑ (a) If such imposition or increase so takes effect that (the duty or tax or increased duty or tax) as the case may, or any part thereof is paid, the seller may add so much to the contract price as will be equivalent to the amount paid (in respect of such duty or tax or increase of duty or tax) and he shall be entitled to be paid and to sue for and recover such addition, and (b) If such decrease or remission so takes effect that the decreased duty (or tax) only or no duty (or tax), as the case may be, is paid the‑buyer may deduct so much from the contract price as will be equivalent to the decrease of duty (or tax) or remitted duty (or tax), and he shall not be liable to pay, or be sued for or in respect of such deduction." From evidence it is apparent that supply of goods were not made upto the contract date and may be the delay was due to the imposition of sales tax on 29‑5‑1986. The learned Courts below have observed that if the plaintiff had delayed the supply of goods up to the contract date why the, defendant accepted the same and if the defendant has accepted the same then they are liable to pay the sales tax which the plaintiff has paid on the goods delivered after, 29‑5‑1986 and decided Issue No. 1, accordingly.

7. The second part of the terms of agreement Exh.D.I shows that 95% payment will be made as advance payment after inspection at Mills premises and on proof of dispatch. The balance 5% will be paid on consignee's receipt. The willingness on the part of the appellant/defendant and acceptance of delivery shows that there was implied acceptance that additional sales tax paid by the respondent/plaintiff was to be paid by the appellant/ defendant in view of section 64‑A of the Sale of Goods Act, 1930.

8. Keeping in view the evidence of P.W.1 Irshad Ahmad, P.W.2, Muhammad Rafiq, P.W.3, Zaheer A. Sheikh, Exhs.P.1 to P.22, D.W.1, agreement Exh.D.1, letter Exh.D.2 delivery of schedule Exh.D.3, I am of the view that the concurrent findings of both the learned Courts below are well‑reasoned, issue‑wise findings and based on true appreciation of evidence and the law, thus no interference is made in the impugned judgments in second appeal, the same is dismissed. No order as to costs. M.I./P‑130/L Appeal dismissed.