Super Cassettes Industries Ltd. v. Punit Goenka & Anr.

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be reported No in the Digest? MANMOHAN SINGH, J.

1. By this order I propose to dispose of the IA No.12303/2009 filed by the plaintiff under Sections 151 & 152 CPC.

2. The contention of the plaintiff is that while considering the interim application being IA No.5670/2009 at the preliminary stage, this Court on 30.4.2009 passed the certain direction wherein the defendant was directed to make a deposit of Rs.4,69,39,336/-. Admittedly the 2010:DHC:176 dated 13.8.2009, while disposing of the said IA No.5670/2009 this Court has passed the following orders in respect of the said deposit: “To release the amount of Rs.4,00,00,000/- (Rupees Four Crore Only) and Rs.69,33,336/- (Rupees Sixty Nine Lac Thirty Three Thousand Three Hundred Thirty Six Only) which has been deposited by the defendants as per order dated 30th April, 2009 in favour of the plaintiff in consonance with the admitted previous year’s royalty and outstanding for the months of February-March, 2009 resepectively. The said amount as referred would cover upto 31st March,

2010. However, it is made clear that the plaintiff is at liberty to file the fresh application of injunction after the expiry of the aforesaid period which would be considered by the Court as per its own merit. Similarly, the defendants are also entitled to file any fresh application for modification of the orders, if necessary incase of change of circumstances.”

3. Admittedly the said amount of Rs.4,69,39,336/- was released to the plaintiff. The contention of the plaintiff is now that by an accidental slip and omission in the order dated 13th August, 2009, it does not specify to require the defendant to deposit the VAT due to on the payment of Rs.4,69,33,336/-. Consequently, the plaintiff has not received the interim payment in consonance with the admitted previous year’s royalty as this Court decided. Rather the plaintiff has received Rs.16 lacs less amount in the previous year which is not in accordance with the order of this Court. The prayer has been made that this Court may correct the said error in its calculation in order to give its decision.

4. It is further submitted in the application that the sum of Rs.4,69,33,336/- was released to the plaintiff on 5th September, 2009. of Registrar General of this Court. Therefore, interest has accrued on the said amount from the date of deposit till 5th September, 2009 and the said amount of interest is available with the Registry of this Court be released to the plaintiff being interest earned on the plaintiff’s money. The next prayer in the application is to make directions requiring the defendant to deposit sum of Rs.16 lacs towards payment of VAT @4% on the amount of Rs.[4] crores and the said amount be released to the plaintiff. It is further prayed in the application that the amount of interest accrued on the amount of Rs.4,69,33,336/- from the date of deposit till 5.9.2009 be also released to the plaintiff.

5. Reply to this application has been filed by the defendant who alleges that the deposit was made without prejudice to the rights and contentions of the defendant and as a matter of fact vide order dated 13.8.2009 this Court directed the release of the said payment to the plaintiff as an advance licence fee for the year 2009-2010 and the plaintiff has received the amount in advance although as per the previous agreement the payment to the plaintiff was on monthly basis and the plaintiff is not entitled for any interest on the fixed deposit. In its reply the defendant has also raised its grievance that while calculating the said amount which was released to the plaintiff, the Court did not calculate the applicable taxes which the plaintiff had to pay to the income tax department which has to be deposited as TDS (Tax Deductible at Source) of 11.33% which was not calculated by the Court. The detail of the same are given in para 3 of the reply which a. Advance Licence Fee for 2009-2010 Rs. 40000000 VAT @ 4% Rs. 1600000 Sub Total Rs. 41600000 b. Arrears Feb-March-2009 (inclusive VAT) Rs.6933336 Total (a+b) Rs. 48533336 c. TDS @ 11.33% Rs. 5498827 Amount Recoverable (TDS-VAT) Rs. 3898827

6. The contention of the learned counsel for the defendant is that in view of the same the plaintiff has to refund Rs.38,98,827/- to the defendant which has to be deposited to the income tax department although the defendant is not challenging the applicable VAT of 4% which has to be paid to the plaintiff.

7. The learned counsel for both the parties are agreeable that the contention of the defendant in its reply about the applicable taxes i.e. TDS of 11.33% be also decided in the present application and they have also made rival submissions in this regard. The learned counsel for the plaintiff also strongly opposed the said request of the defendant for refund of Rs.38,98,827/- to the defendant. Thus, in view of the said circumstances, it is not appropriate for the Court to decide the contention of the defendant in the present application which has been made by the plaintiff for clarification of the order. However, the defendant is granted two weeks time to file the proper application for the relief claimed in the reply which is opposed by the plaintiff. As far as the present application is concerned, I agree with the learned counsel for the plaintiff that it was the clear intention of the order of this Court consonance with the admitted previous years royalty and outstanding for the month of February & March 2009 respectively. I do not want to express any opinion about the contention of the defendant that the said amount was ordered to be deposited ad an advance licence fee for the year 2009-2010 in view of the orders dated 30.4.2009 and 13.8.2009 in this regard.

8. As regards the amount of Rs.16 lacs as 4% of VAT on the amount of Rs.[4] crores is concerned, since the defendant has no objection if the amount of Rs.16 lacs is payable to the plaintiff, the order dated 13.8.2009 is accordingly modified by adding following order: “The defendant is also directed to make the deposit of Rs.16 lacs Value Added Tax @4% on the amount of Rs.[4] crores. As regards the release of interest accrued on the fixed deposit of Rs.4,69,33,336/- is concerned, the said objection raised by the defendant is kept open till further direction in the matter.”

9. The contention of the defendant about the TDS amount is concerned wherein the defendant has alleged that the plaintiff has to refund Rs.38,98,827/- to the defendant, without going into the merit of the said contention of the parties, it is ordered that the defendant is given two weeks time to file the separate application in this regard, however as regards the deposit of amount of Rs.16 lacs is concerned, VAT charges may be deposited by the defendant within ten weeks from today.

10. IA stands disposed of. CS(OS) No. 769/2009 List before the Court on 18th March, 2010.