Maqsood Ali vs Government of M.P.

S.B. Sen, J.—The Appellant is the legal representative of Syed Ibdatali. He had some transport business operating in the Holkar State as well as part of British India, in the old territory of Madhya Pradesh. As per rules existing in the then Holkar State Ibdatali had to deposit Rs. 682/8/- in stamps with the transport authorities for the permit some time in 1943. Subsequent to deposit of these stamps there was an understanding between the authorities of British India and the Holker State by which payment of tax in both the States was dispensed with and the permit issued by one Government was to be valid for the other. Though it is not specifically stated it appears that syed Ibdatali had paid the necessary amount in British India and therefore he was exempted from the payment of the permit fee in the Holker State. The agreement between the Holker State and British India authorities came into force on 1-1-1944.

It is not disputed that the usual mode of payment of permit fee was in the shape of purchasing stamps and depositing the same with the transport authorities, which Ibdatali had done as already stated in 1943. In view of the above agreement between the two States, the Transport Authorities could not retain the stamps. The stamps were therefore returned to said Ibdatali in the year 1946 with an endorsement dated 16-1-1946 directing him to obtain refund of deposit from the revenue authorities, Holker State. The legal representative of said Ibdatali there upon made an application to the Subha on 12-12 1947 but was unsuccessful in getting the money back. A review application dated 3-1-49 was also dismissed. A suit has therefore been brought by the Appellant against the State Government after giving due notice for the refund of Rs. 682/8/-. Originally Government of Madhya Bharat was a party, but after the re-organisation, the Sate of Madhya Pradesh has been made Respondent in this case.

The trial Court dismissed the suit as barred by time relying on Article 14 of the Limitation Act. The suit was filed on 30-1 -1951 and it was according to the trial Court more than one year after the order of Subha which was passed on 29-1-1948.

The appellate Court agreed with the trial Court that the claim was barred, but it held that Article 97 Limitation Act would apply to the facts of the case. According to it the cause of action was in the year 1944 when both the Government of Holker State and British India came to an agreement that payment in one State would be sufficient for the purpose of plying in other territory. The limitation being three years the suit was barred by time.

The contention of the Appellant is that Article 120 the limitation applies to the facts of the case and the claim is not barred by time- This Article is a residuary Article and if it is found that any other Article applies to the facts of the case, application of Article 120 is necessarily excluded. This Article reads as follows:

Suit for which no Six years period of limitation is provided elsewhere in this schedule When the right to sue accrues.

Before trying to find out what particular article applies, it is necessary to give crucial facts in brief. The payment was made in the form of stamps to the Transport Authorities for plying for the year beginning in January 1944. According to the subsequent agreement the same was not payable. Therefore the amount becomes re-payable to the Plaintiff The State Government has not (sic) exact date when the agreement (sic) existence and when the amount became re payable. The first document in this respect is the endorsement of the Transport Authority dated 16-1-1946.

The appellate Court applied Article 97 of the Limitation Act. It reads as follows:

The money paid Three years. The date

upon an existing consideration which afterwards fails. of the failure.

Now this article can not be made applicable for the simple reason that the money was not for any existing consideration which ultimately failed. When the stamps were deposited it was deposited as fees. The Government Advocate contends that the consideration was permit- Even assuming that the consideration was permit to ply, it did not fail. Therefore Article 97 cannot be made applicable.

The learned Government Advocate next contends that if Article 97 would not apply then Article 62 would be made applicable. Article 62 reads as follows:

For money payable by the Defendant to the Plaintiff for money received by the Defendant for the Plaintiff''s use. Three years When the money is received.

It cannot apply when there was money which was not received by the Defendant for the Plaintiff''s use.

The learned Government Advocate relied on a ruling reported in The City Municipality Vs. Nusserwanji Hormusji Madon, . But that was a suit to recover certain amount of Municipal Tax on the ground that it was illegally levied He also relied on the rulingp in A. I. R. 1943 Mad. 19! (India Sugars v. Municipal Council) A. I. R. 1955 Mys. 110 (Bangalore Municipal Corporation v. Mrs. Tallam) and A. I. R. 1956 PC 26 (Pannalal v. Union of India). All the above cases quoted by the learned Government Advocate related to the levy of illegal taxes. It is clear from the facts of the instant case that there was no illegal levy. It was in pursuance to some agreement which was entered into between the two States that permit fee was not required to be paid. Therefore the above cited rulings are of no avail to the Respondent.

A submission was also made that Article 96 Limitation Act would apply. This articles is based on the ground of mistake on the part of the Plaintiff in making the payment.

It may be mentioned here that there was no money received by the Transport Authorities. It was the question or refund of the stamps. The refund could be made u/s 54 of the Stamp Act. This section does not come in the way of the suit for the refund of the stamps. It gives the Collector the authority to make payment, if the application is made within six months. But it is not the Collector to whom the Appellant is approaching for the refund of the money.

As will appear from the above discussion that none of the articles mentioned above would apply to the facts of the case. The Government wanted to return the money on the basis of the stamps. It gave intimation as late as 1946. As soon as the agreement reached, the stamps which were in deposit with the Government should have been returned forthwith. They were sort of trustees. It is not a case of realisation by any illegal levy. It will therefore be clear that no article of the Limitation Act would strictly apply to the facts of the case. Therefore in my view Article 120 can be made applicable. The limitation started from the date when the Government returned the stamps with endorsement for refunding the money by the Revenue Secretary. It was as late as 1946. Therefore the claim will be in time.

14 Before closing I cannot fail to remark that the State Government should have taken a definite stand regarding limitation. In the written statement beyond saying that the claim is barred by time, it has not stated how it is barred Before the Court also the Government Advocate had to take recourse to several articles in order to substantiate his case. But he has failed, as I have already stated.

The result is the appeal is allowed with costs, the judgment and decree under appeal are set aside and the Plaintiff''s suit is decreed with costs throughout. Counsel fee according to scale, if certified.