' MAMOON KAZI, J.---This petition, for leave to appeal; raises a simple question, whether the suit filed by the respondents could be decreed for Rs,3,19,940.20 with simple interest at six per cent. Per annum from the date of the suit until the payment on the said amount.
2. The facts of the case may be summarised thus. The respondents filed a suit for recovery of Rs,4,44,899.20 with interest at 14 per cent. Per annum from the date of filing of the suit till payment against the appellants. The suit was resisted by the petitioners. The learned Single Judge in the High Court framed five issues. Issue No,3 upon which the entire controversy revolves, was as under:--- "Whether the deduction of Rs,3,19,940.20 by the defendants from the bills under the second contract dated 6-1-1975 was wrongful and are the defendants liable to refund the same?"
3. The said issue was determined in favour of the respondent, vide judgment dated 13-9-1995.
4. The petitioner, feeling aggrieved by the said judgment, filed H.C.A. No,186 of 1995, which was dismissed in limine, vide judgment dated 26-2-1998, and hence the present petition, for leave to appeal.
5. It may be pointed out that vide agreement dated 6-1-1975, the respondents had agreed to supply "411 numbers of Tank Water Convas "S" Type 1350 Gallons MK-I complete (comprising body with cover and tent Salitah MED NK-II)" to the petitioners at a total price of Rs,17,67,300. The respondents supplied the said goods to the petitioners as per the said agreement. Although, initially the respondents' bills were duly paid by the petitioner, but from the remaining two bills, they deducted a sum of Rs,3,19,940.20. The deduction was made by the petitioners allegedly on the ground that an excess payment of the said sum of money had been made by the petitioners to the respondents under the previous contract entered between the parties on 17-6-1974 for supply of 60,000 Chaguls.
6. According to the respondents, both the parties were under an impression that sales tax was not leviable on the said goods. However, on coming to know that 20 per cent sales tax was payable on the said goods, the said amount was refunded to the respondents.
7. The entire controversy between the parties had arisen upon addition of a clause in the original contract contemplating that, "if any tax is levied after the contract the same shall be on buyers' risk and account and will be charged at actuals from the buyer". As sales tax was payable on the said goods by the respondents on behalf of the petitioners, the respondents were first reimbursed, but subsequently the said amount was deducted by the petitioners from the bills sent by the respondents, claiming the said payment to the latter as a 'mistake'. However, the learned Single Judge being convinced by the legitimacy of the respondents' claim, decreed the suit in their favour, as pointed out earlier.
8. As both the learned Single Judge as well as the Division Bench which heard the appeal have determined the issue in favour of the respondent, and not without sufficient reason, we are not inclined to interfere with the said findings of fact. No doubt, objections were also raised on behalf of the petitioners in the written statement regarding maintainability of the suit and non-registration of partnership by the respondents, but since no such issues were framed and neither the said objections appear to have been urged before the learned Single Judge, no findings have been given on the said issues. Even the judgment of the Division Bench is silent in this regard. Therefore, questions which were not urged before, cannot be considered for the first time by this Court.
9. In the result, the petition is dismissed and leave is refused.