IMPORTANT POINT
The appellate Court ruled that the Purchase Order constituted a binding contract obligating the defendant to reimburse the plaintiff for VAT and Octroi payments made, which the trial Court had erroneously dismissed.

JUDGMENT :

(PER : HONOURABLE MR.JUSTICE SANJEEV J.THAKER)

1.1 By way of the captioned Appeal the appellant herein – who is the original plaintiff before the trial Court, has assailed the judgment and decree dated 27.09.2010 of the learned Auxiliary Chamber Judge, Court No.9, City Civil Court, Ahmedabad passed in Civil Suit No.2339 of 2007 whereby the trial Court has dismissed the suit filed by the plaintiff for recovery of Rs.28,64,110/- with interest @ 12% p.a. from the date of the suit till realization from the defendant – respondent herein.

1.2 For the sake of convenience, the parties are hereby referred to as per their original status in the suit filed before the trial Court.

2. The brief facts, in nutshell, are as under:

2.1 The plaintiff had filed Civil Suit No.2339 of 2007 before the City Civil Court at Ahmedabad against the defendant and by judgment and decree dated 27.09.2010, learned Auxiliary Chamber Judge, Court No.9 had dismissed the suit.

2.2 The issue involved in the suit was that the plaintiff filed suit for recovery of Rs.28,64,110/- with interest @ 12% p.a. from the date of the suit till realization from the defendant and it was the case of the plaintiff that pursuant to the Public Advertisement of the defendant in daily news-paper i.e. ‘Divya Bhaskar’ dated 15.02.2006 and after due procedure the plaintiff was invited and thereafter discussion and negotiation took place and accordingly meeting was held on 05.05.2006. Before the issuance of Purchase Order, advance Purchase Order was issued dated 23.06.2006. The unit price of the items was agreed to be Rs.1,46,72,500/- and it was specifically mentioned that total composite price are inclusive of all levies and taxes. After the Advance Purchase Order, the Final Purchase Order was sent by the defendant on 31.07.2006 wherein it has been specifically stated regarding the price and payment. The said final Purchase Order has been produced vide Exh.31 before the trial Court.

2.3 The defendant has filed written statement at Exh.25 contending that no notice under Section 80 of the Code of Civil Procedure, 1908 (herein after referred to as ‘the Code, 1908’) has been served on the defendant and, therefore, the suit is not maintainable. In the written statement, the defendant has also taken a contention that bid and the tender document contain terms and conditions and after the plaintiff was called for negotiation, the plaintiff was found to be eligible as per financial bid annexed to the tender document. It is the case of the defendant in the written statement that plaintiff had to abide by the tender and Bid document and neither of the same provides that Octroi and VAT were to be paid by the defendant.

2.4 It is the case of the defendant that though they received communication on 05.05.2006, the said letter can never be considered to be a concluded document as both the parties had not put up signatures to the said communication. In the written statement, defendant vide Exh.25 had taken the contention that the plaintiff has raised false bills contrary to the agreed terms and conditions and hence defendant is not liable to make any excess payment to the plaintiff.

2.5 The issues are framed by the trial Court vide Exh.26, which read as under:

1. Whether the plaintiff proves that they are entitled to the amount as prayed for?

2. Whether the plaintiff is entitled to recover the amount which is paid towards the Octroi and VAT ?

3. Whether the plaintiff is entitled to claim interest at the rate of 12% on the suit amount from the defendant ?

4. Whether the defendants prove that VAT and Octroi are to be paid by the plaintiff ?

5. Whether the plaintiff is entitled to the reliefs as sought for ?

6. What order and decree?

3. The plaintiff had examined one Kiritbhai Faldubhai at Exh.41, who is the Managing Director of plaintiff company. The defendant had examined Mr.C.A.Patel, Assistant General Manager (Marketing) in defendant company at Exh.53 and one Navinchandra Hiralal Bhavsar at Exh.56 and it