Ramchendera Srinavas vs The Shahdara Sharanpur Light Railway

Siadat Ali Khan, J.—This is revision petition No. 181 register No. A-5/1 (Telangana) against the judgment: of the Additional Sessions Judge, Secunderabad dated 22-1-1949 by which the revision Petitioner''s suit was dismissed on the ground that it was out of time.

I have heard the arguments of the learned. Advocates of the parties and perused the judgment under revision. It appears to me that the learned Additional Sessions Judge based his judgment on � A.M. Appavoo Chettiar Vs. The South Indian Railway Company and Another, and dismissed it. This Madras case proceeds on the interpretation of illustration. (b) of Section 72 of the Indian Contract Act to the effect that when payment was made according to a wrong schedule, it was a mistake \\of law. This case has been over-ruled by their Lordships of the Privy Council in a judgment, passed after the judgment under revision, in � AIR 1949 297 (Privy Council) (B). Their Lord ships of the Privy Council have held that if payment is made under a mistake as to the rates it is not a mistake of law but it is a mistake of fact. Thus, the basis of the judgment under revision has been altered.

The learned Advocate for the Respondent then argued that the payment was not illegal. It should be noted that the learned Additional Sessions Judge has found distinctly that the payment was illegal. The goods were consigned at Baraut station on Section Section L. Railway. There O. R. R. rates prevailed. The goods were consigned to Kachiguda Railway Station which is outside the jurisdiction of Section Section L. Railway. On N. Section Railway the R. R. R. rates prevailed and the rates were higher than the O. R. R. rates. The learned Additional Sessions Judge therefore held that the clerk at the Kachi-guda Railway Station who charged at the R. R. R. rates had no authority to do so as he altered the basis of the contract. The learned Advocate for the Respondent argued on the authority of M. Sheik Dawood Rowther Vs. South Indian Railway Co. Ltd. and Another, (C), that the action of the clerk at the Kachiguda Railway Station was correct inasmuch as he has no authority to charge outside the tariff rates prevailing in N. Section Railway. I do not agree, for the contract was made at Baraut Station and it had to be followed. Any adjustment of the account in respect of the difference of rates is a matter between the railway companies and not a matter as between the parties. The railway company contracts with the party at the rates mentioned in the railway receipt and this has to be followed. I need not cite any authority, for this has been accepted always to be the case. Thus, in my opinion it is quite evident that excessive rates were charged.

Then comes the question of limitation. The learned Advocate for the Respondent argued that Article 62, Indian Limitation Act, only applies; for money was paid voluntarily and, therefore, action for its recovery can only be of "money had and received", for this he has cited � The City Municipality Vs. Nusserwanji Hormusji Madon, (D). It appears to me that though the money was charged by the Kachiguda clerk on 10-6-1943 the contention of the revision Petitioner that he came to know that it was in excess of O. R. R. rates on 29-6-43 will have to be gone in to; for Article 98, Indian Limitation Act gives him time from the date of knowledge. The Bombay case in my opinion is not relevant inasmuch as the payment cannot come under the heading "money had and received". The revision Petitioner was bound to pay the money and he paid it under a demand which could have been enforced by withholding the goods and otherwise if he had not complied. I do not think to such cases the notion of the quasi-contract of money had and received can be applied. Thus, I allow this revision petition with costs, set aside the judgment under revision and direct that the case be disposed of in accordance with law, after allowing time to the revision Petitioner to prove the date of his knowledge. If the limitation point is not decided against the revision Petitioner the case will have to be disposed of according to law on merits.