The T.S.H.W. Co-operative Society Ltd. vs S. Sundaram Mudaliar

Vilthayathil, J.—Plaintiff is the Appellant. The suit is for recovery of excess amount realised by the Defendant from the Plaintiff by way of freight. The Plaintiff is the Travancore Sreemoolam Handloom Weavers Central Co-operative Society Limited having its registered office in Trivandrum. The Defendant was the holder of a licence for the import of yarn to Travancore. The licence was issued under the Travancore Yarn Dealers'' Control Order.

The allegations in the plaint are the following: The Plaintiff-Society was engaged in supplying yarn, directly and through primary co-operative Societies, to weavers in Travancore as per licence issued by the Travancore Textile Commissioner. The Defendant was an importer of yarn and obtained licence for the purpose. Both the Plaintiff and the Defendant were bound to obey the orders issued by the Textile Commissioner under the provisions of the Yam Dealers'' Control Order.

As per permits issued by the Textile Commissioner, the Plaintiff purchased 710 bales of yarn from the Defendant during the period between 18-1-1121 and 6-12-1121. Since the Plaintiff was bound to purchase yarn from the Defendant before the expiry of ten days from the date of issue of the permit the Plaintiff was forced to pay the price demanded by the Defendant. The Defendant demanded excess amounts by way of freight. The Plaintiff paid these amounts under protest and afterwards complained to the Textile Commissioner about the illegal exaction.

The Commissioner enquired into the matter and found that the Plaintiff was entitled to get �refund of Rs. 3,550 from the Defendant. The order of the Commissioner is dated 18-11-1122. The appeal filed by the Defendant to the Government from this order was also dismissed. The Plaintiff then requested the Government to appropriate this amount from out of the security money deposited by the Defendant.

But, since no security deposit was outstanding with the Government, the Plaintiff was directed to ''take appropriate legal steps to realize the amount from the Defendant. Plaintiff accordingly tiled this suit for recovery of Rs. 3,550 and interest at 6 per cent per annum from 18-11-1122, the date of the order of the Textile Commissioner.

The Defendant raised the following contentions in his written statement: The sale of yarn to the Plaintiff was made in accordance with the terms of the license granted to the Defendant by the Government and in conformity with the provisions of the Yarn Control Order. The Defendant Jbas not over-charged the Plaintiff to any extent. The price'' demanded by the Defendant was the price which he was legally entitled to claim.

The Plaintiff was not compelled to purchase yarn from the Defendant. The price paid by the Plaintiff was paid voluntarily and there was no protest by the Plaintiff at any time. It was only on 24-4-1946 that the Plaintiff put forward the case that excess amounts have been realised by the Defendant. The Defendant had incurred extra expenses for transporting yarn to his god owns at Vadassery. Even after raising the objection, regarding the price of yarn in the letter dated 24-4-1946 the Plaintiff purchased from the Defendant about, 300 bales of yarn without any protest regarding the price.

The Plaintiff is not entitled to claim refund of any, amount. The order of the Textile Commissioner did not impose any obligation on the Defendant to pay to the Plaintiff the amount mentioned in the order. The Plaintiff has no cause of action against the Defendant, and the suit is not maintainable.

Thirteen Issues were raised in the case. Of these all except issues Nos. 6 and 7 were decided in favour of the Plaintiff. Issue No. 6 raises the question whether the Plaintiff has a right to sue and issue No. 7 is whether the Plaintiff has got a cause of action. In deciding those issues the court below held that the suit is barred by limitation and consequently dismissed the suit, but without costs.

The only question for decision so far as the appeal is concerned is whether the suit is barred by limitation. The Respondent has filed a memorandum of objections objecting to the findings of the court below which are against him. If the suit is found be barred by limitation it will not be necessary to consider those objections. We shall, therefore, go into the question whether the suit is barred by limitation.

According to the court below Article 50 of the Rravancore Limitation Act, corresponding to Article 62 of the Indian Limitation Act, applies to the case. That Article reads:

For money payable by three the Defendant to the Years Plaintiff for money received the Defendant to the years is received.

Plaintiff for money received by the Defendant for the Plaintiff''s use.

The last payment was made by the Plaintiff cm 6-12-1121. The suit was instituted on 28-4-1125, i.e., more than three years after that date. Therefore, if Article 62 of the Indian Limitation Act applies to the case the suit is clearly barred by limitation.

The allegation in the plaint is that the cause of action arose on 18-11-1122, the date of the order of the Textile Commissioner (Ext. A) Holding by the Defendant was liable to refund to the Plaintiff Rs. 3,550 realised by the Defendant by way of excess freight. Ext. Asis only a letter written by the Textile Commissioner to the Defendant requesting the Defendant to refund to the Plaintiff Rs. 3,550 which, according to the Commissioner, was excess amount realised by the Defendant for the sale of 710 bales of yarn to the Plaintiff.

The Textile Commissioner had no authority under the Yarn Control Order to adjudicate upon any dispute between the wholesale dealer and a permit-holder and to pass an award. Ext. A has not, therefore, the effect of an award. It is true that, if the Defendant refused to comply with the direction of the Commissioner the latter could cancel the license granted to him or take any other appropriate action which he was authorized to take under the Control Order.

But that does not mean that the Plaintiff has got a cause of ''action against the Defendant on the basis of the direction of the Textile Commissioner. We are, therefore, unable to accept the contention that the Plaintiff''s cause of action arose on the date of Ext. A.

The question for consideration is what is the Article of the Limitation Act that will apply to a suit for realization of money illegally exacted by the Defendant from the Plaintiff. According to learned Counsel for the Appellant, Article 62 wilt not apply to such a case, and it is Article 120 (Art. 109 of the Travancore Limitation Act) that will apply. Article 120 of the Limitation Act is the residuary Article which prescribes a period of six years for suits which will not come under any other Article of the Limitation Act.

It was also contended that Articles 95 and 86 may also apply to the case. Article 95 applies to cases in which the basis of the suit is fraud practiced by the Defendant on the Plaintiff and the period of limitation is three years from the date when the fraud becomes known to the Plaintiff. Article 96 applies to cases in which relief is claimed on the ground of mistake and the period of limitation is three years from the date when the mistake becomes known to the Plaintiff.

But, in the plaint there is no allegation of fraud or mistake. The allegation is that the Plaintiff was compelled to pay the excess amounts claimed by the Defendant as the Plaintiff was bound to purchase yarn from the Defendant within ten days from the date of issue of permit by the Textile Commissioner.

It is not alleged that the Plaintiff did not know at the time of making the payments that the amounts claimed by the Defendant were excessive. The evidence of P. Ws. 1 and 2 is also to'' the effect that the Plaintiff knew at the time of making the payments that the Defendant was collecting excess amount by way of freight and that the payments were made under protest.

In the circumstances, we do not think that Arts. 95 and 96 will apply to the case. The only question, therefore, for consideration is whether it is Article 62, or Article 120, that will apply.

It was argued for the Appellant that- It cannot be said that the money claimed in this suit is money received by the Defendant for the Plaintiff''s use. According to the literal interpretation of Article 62 the Article will apply only to cases in which money is received by the Defendant for the Plaintiff''s use. It cannot be said that, in this case, the excess amount realised by the Defendant from the Plaintiff was money received by the Defendant for the Plaintiffs use.

It is obvious that the money was received by the Defendant for the Defendant''s own use. But, the expression "money received by the Defendant for the Plaintiff''s use" has a wider meaning under the English Common Law, and the question is whether it is in that sense that it is used in Article 62 or in the sense conveyed by its literal meaning. This question was discussed by Mukherjea, J., In Mohamed Wahib v. Mohamed Ameer, ILR 32 Cal 527 (A). The learned Judge said:

It seems to me, it is clear, as pointed out by Markby, J., in Raghumoni Audhikai''y v. Nilmony Singh Deo. ILR 2 Cal 393 (B), that the article, when it speaks of a suit for money received by the Defendant for the Plaintiff''s the , points to the well-known English action in that form; consequently the article ought to apply wherever the Defendant has received money which in justice and equity belongs to the Plaintiff under circumstances which in law render the receipt of it a receipt by the Defendant to the use of the Plaintiff.

As pointed out by Lord Mansfield, C.J. in Moses v. Macfarlane, (1760) 2 Burr. 1005 this form of action lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition (express or implied) or extortion or oppression or an undue advantage taken of the Plaintiff''s situation contrary to laws made for the protection of persons under those circumstances, in other words, this form of action would be maintainable in cases in which the Defendant, at the time of receipt, in fact or by presumption or fiction of law, receives the money for the use of the Plaintiff. See also Keener on Quasi Contracts, p. 180.

As illustrations of cases where, under circumstances similar to those of the present case, it has been held in England that an action lies in this form I may refer to Litt v. Martindale, (18136) 18 CB 314 and Andrews v. Hawley, (1857) 20 LJ 823 .In the first of these cases, it was held by Jarvis. C J. that whore the Defendant has wrongfully obtained the Plaintiff''s money from a third party, as by a false pretence, it may be recovered in action for money had and received. In the second case it was held by Pollock C. B. that where the Defendant wrongfully obtained from the plain-, tiff''s debtors the payment of their debts under a fraudulent misrepresentation that he had authority to collect them, the Plaintiff was entitled to recover the amount under this count.

The same view is amply supported by other cases: See Neate v. Harding, (1851) 6 Ex. 349 and Holt v. Ely (1853) 1 E. & B. 795 . It Is clear therefore that under the English Law, a sum received by the Defendant is treated as having been received for the Plaintiff''s use, even though it might have been taken wrongfully, and I am of opinion that the same principle ought to be applied in construing Article 62.

In John v. Dodwell 3s Co. Ltd. AIR 1918 PC 241 Viscount Haldane explained the basis of the action for "money had and received" under the English Common Law in the following words:

The action for money had and received is, according to the Law of England, in its nature one of assumpsit, founded on implied or imputed con tract and depends on a waiver of any tort committed, and on the correlative affirmance of a contractual relation.

The question was discussed by the Allahabad High Court in The Rajputtana & Malwa Rly. Co-operative Stores Ltd. v. A.imere Municipal Board. ILR 32 All 491 (I). In that case, a Municipal Board, in disregard of certain lawful orders of the Government of India, levied upon a company trading within the municipal limits certain sums byway of octoroon duty over and above what they were legally entitled to levy.

It was held that the suit was one for "money-received by the Defendant for the Plaintiff''s use", within the meaning of Article 62 of the Indian Limitation Act. Stanely, C. J., and Banerjee, J., observed as follows:

The language of Article 62 is borrowed from the form of count in vogue in England under the Common Law Procedure Act of 1852. Prior to the passing of the Supreme Court of Judicature Acts 1873 and 1875, there was a number of forms of pleading known as the common indevitatus counts such as counts Tor money lent, money paid by the Plaintiff for the use of the Defendant at his request, money received by the Defendant for the use of the Plaintiff, ete. These forms are no longer In. use.

Statements of claim must now be more specific and must contain a statement in a summary form of the material facts on which the Plaintiff relies. The most ''comprehensive of the old Common Law counts was that for money received by the Defendant for the use of the Plaintiff. This count was applicable where a Defendant received money which in justice and equity belonged to the Plaintiff under circumstances which rendered the receipt by the Defendant to the use of the Plaintiff.

It was a form of suit which was adopted when a Plaintiff''s money had been wrongfully obtained by the Defendant, as for example, when money was exacted by extortion or oppression, or by abuse of legal process, or when over-charges were paid to a carrier to induce him to carry goods or when money was paid by the Plaintiff in discharge of a demand illegally made under colour of an office. It was a form of claim which was applicable when the Plaintiff''s money had been wrongfully obtained by the Defendant, the Plaintiff in adopting it waiving the wrong and claiming the money as money received to his use (e.g. see Morgan v. Palmer, (1824) 2.B&C 729 (J); also (1851) 6 Ex.-349 (F).

A suit for compensation for damages is a suit of a different nature. In it a Plaintiff does not seek for the return of a specific sum of money, but for damages to be assessed by the court for a wrongful act. Now in the case before us the Plaintiff-company does not ask for compensation or damages ........ This is in the nature of a claim for money had and received by the Defendant Municipality for the Plaintiff''s use and is not a claim for compensation or damages. It is the old count for money had and received in modern dress....... The claim in our opinion therefore clearly comes within Article 62 and not Article 2.

The same view was taken by Kania, J., (as he then was) in The City Municipality Vs. Nusserwanji Hormusji Madon, . That was a suit for refund of money illegally exacted by the Defendant municipality from the Plaintiff. The learned Judge held that Article 62 would apply to the case. This case and ILR 32 Cal 527 (A) and ILR 32 All 491 (I) were followed by Kapur, J, in The Municipal Committee, Amritsar Vs. Amar Dass, .

In that case, the Municipal Committee of Amritsar levied house tax from the mahant of a religious institution. The suit was for refund of the amount on the ground that house tax was not recoverable from a religious institution. The suit was instituted more than three years after the data on which the amount was collected by the Municipal Committee. It was held that the article applicable to the case was Article 62 of the Limitation Act and that the suit was barred by limitation.

In The Municipal Council Vs. The Bombay Company, Ltd., the Madras High Court held that a cult for recovery of money wrongfully collected by a Municipality was in essence an equitable action lor money had and received and not a suit for damages or compensation and that Article 62 of the Limitation Act would apply to such a nuit. The same view was taken by the Madras High Court. In Taluk Board of Devakotta v. Chocklingam Chettiar, 1932 Mad WN 1089 . In The Panchayat Board Vs. The Western India Matches Company by Agent Henrik Hybbidnettee, , a Pull Bench of the Madras High Court held that Article 1 62 of the Limitation Act would apply to suits against a local board for refund of house tax illegally collected by the board. In The India Sugars and Refineries, Ltd., a limited liability company Vs. The Municipal Council, the suit was to recover licence fees and profession tax alleged to have been wrongfully levied by the Municipal Council from the Plaintiff-company.

It was contended for the Plaintiff that Article 62 would apply only to action for money had and received in the strict sense of the term and that in a case in which the action was based not on an Implied contract but on the principle of ex aequo "t bono Article 62 would have no application and that it was the residuary Article 120 that would:apply. This contention was repelled by Wads-worth, J., and Patanjali Sastri, J. (us be then was). Wadsworth. J. observed:

We have been referred to no authority in support of this argument and it seems to us that Article 62 is intended to apply to all actions for money had and received to the use of the Plaintiff whether they be actions which may be deemed strictly to "be based on implied contracts or whether they be rarely to enforce an equitable claim to the return of the money-had and received.

To the same effect is the decision in The State of Madras Vs. A.M.N.A. Abdul Kader Tharaganar Firm, . That was a suit for recovery of amount alleged to have been illegally "collected from the Plaintiff as sales-tax by the estate of Madras. Panchapakesa Iyer, J., held that Article 62 would apply to the case. A still later decision of the Madras High Court on the point is ''Ven-kataram Iyer v. Kuppuswamy Iyer, 1955 Mad WN "184: AIR 1955 Mad 643. In that case the suit was by a tenant for recovery of excess rent paid by him. Somasundaram, J., held that Article 62 -applied to the case.

Reference may also be made to the decision of the Travancore High Court in Chacko v. ''Mathew, 8 TLJ 346 (S). The suit in that case was for pasaram dues collected by the Defendant as treasurer of a Christian Church for distribution among the priests of the parish.

Palpu Pillai and Raman Thampi, JJ., held that Article 62 of the Indian Limitation Act (Art. 47 of the Travancore Limitation Act) would apply to the case. The learned Judges followed the decision in ILR 32 Cal 527 and observed:

The well-known action of English Law for money received by the Defendant for the Plaintiff''s use lies in all cases where the Defendant, at the time of receipt in fact or by presumption or fiction of law receives the money for the use of the plain-'' tiff. Blackstone in his Commentaries Eays that this action lies ''when one has had and received money belonging to another without any valuable Consideration given on the receiver''s part; for the law considers this to be money had and received " for the use of the owner only, and implies that the person in receiving promised and undertook to account for it to the true proprietor.

And if he unjustly detains it an action on the'''' case lies against him for the breach of such implied promise and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained in Violation of such his promise. This is a very extensive and beneficial remedy applicable to almost every case where the Defendant had received money, which ex adequate bono he ought to refund''. Blackstone''s Commentaries, Vol. Ill, page 162.

A case very similar to the present one came up for consideration before the Nagpur High Court in Meghji Hirjee & Co. v. B.N. Rly. Co. Ltd.. AIR 1939 Nag 141 (T). In that case the plain. tiff, a forest contractor, sued the Defendant Railway Company for a sum of Rs. 1,000'' excess chargea deviled by the company or wagons of firewood. Plaintiff at first complained to the Governor-General in Council. The Governor-General in Council'' referred the matter to the Railway Rates Advisory Committee.

The committee found that the Plaintiff was entitled to have the rates reduced: With regard to the claim for damages the Committee held that if since it was only an advisory body it had no power to award damages. The recommendations of the Committee were accepted by the Governor General in Council and the Railway Company reduced the rates. Plaintiff subsequently instituted the suit for return of the excess charges realised by the Company. The Plaintiff based his cause of action on the finding of the Advisory Committee.

It was held that Article 62 of the Limitation Act ''. would apply to the case and that the suit had to be brought within three years from the date of H payment of the excess charge.

Learned Counsel for the Appellant referred to certain decisions in support of his position.'' that Article 62 of the Indian Limitation Act will not apply to the case and that it is Article 120 that will apply. The first case is Anantaram Bhattacharjee Vs. Hem Chandra Kar and Others, In that case there was dispute between owners of contiguous properties relating possession of the properties and the properties were attached u/s 146 of the Code of Criminal Procedure and the income was deposited in the lectorate.

The owner of one of the properties withdrew as portion of the income alleging that it represented his share of the profits. The owners of the other'' property sued him for the recovery of the amount withdrawn by him on the ground that the lands attached belonged to them. Walmsley and Ghose, JJ. held that Article 120, applied to the case. The facts of this case are entirely different from those of the present case. But certain observations of Ghose, J., in the judgment are in favour of the Appellant.

The learned Judge did not agree with the observations of Mukherjea, J., in ILR 32 Cal 527 (A), regarding the scope of Article 62. Ghose, J., Bald:

The Common Law form of action for money had and received grew out of the circumstance that, at Common Law in England an. action in personam is maintainable only on contract or on tort. Where therefore an action was not based on tort and f Plaintiff was unable to "establish any contract-evidence, it was found necessary to have recourse to a fiction of a promise to pay implied in law and order to give relief to the Plaintiff and to meet the justice of the case.

The history of this form of action and the reasons which led to its extension are set forth the case of Sinclair v. Brougham, 1914 AC 398 (Speech of Lord Haldane, L. C. at pages 415-41T and of Lord Sumner at pages 454-456). It is ed out by Lord Sumner that this was said to be a ''liberal'' action in .that it was attended by a minimum of formality, and was elastic and readily capable of being adapted to new circumstances.

There does not appear to be any sufficient reason why this artificial form of action should be imported in this country in order to decide whether a suit w6uld come under Article 62 of the Limitation Act. In India law and equity are administered by the game Courts, which are untrammeled (by any technical rules as to the form of an action in giving relief to the Plaintiff, where the Defendant has received money which according to the justice of the case he ought to refund.

The observations of the Judicial Committee in the case of John v. Dodwell, 1918 App Cas 563 : AIR 1918 PC 241) furnish an illustration or this view. In my opinion the plain meaning of the words in Article 62 of the Limitation Act should be given effect to without having recourse to any technical rules of English Law regarding forms of action.

This view was followed by Chagla C. J. In Lingangouda Marigouda Vs. Lingangouda Fakirgouda and Others, In that case the Plaintiff and Defendant No. 2 on the one hand and Defendant No. 1 on .the other paid to the Sanglai State Rs. 582-6-4 by way of assessment. Plaintiff and Defendant No. 2 paid a moiety and Defendant No. 1 paid the other moiety. The State subsequently ordered that the amount of assessment might be refunded, but instead of refunding one-half of the amount to the Plaintiff and Defendant No. 2 and the other half to Defendant No. 1 the State refunded the whole amount to Defendant No. 1.

Plaintiff filed the suit on behalf of himself and Defendant No. 2 for one-half the amount. It was contended on behalf of Defendant No. 1 that Article 62 applied to the case and that the suit was barred by limitation. Chagla C. J. held that Article 62 would not apply and that it was Article 120 that applied. The learned Chief Justice observed:

The language used in Article 62 is the language taken from English cases. But there is one important fact that should be borne in mind that in England it was necessary for the Courts to find an implied contract in order that suits may be maintainable. A suit in persona would not lie unless there was an express or implied contract and therefore the Courts were at pains in many cases to infer or imply a contract so that the Plaintiff should not fail by reason of a defect in procedure.

Therefore in English books there are many cases where an implied contract has been arrived! at in order to sustain the action. In India there never was any reason to stretch a point in favour of the Plaintiff in order to sustain his action. As Courts here were both Courts of law and equity, the question of formal procedure which was of such importance in one stage in England never troubled our Courts and our Judges and therefore- it is always safe to follow English decisions in construing Article 62.

If anything, in India Article 62 should be more strictly construed, because the liberal construction would result in more Plaintiffs losing in a large number of cases on the ground of limitation, because if Article 62 is strictly construed then the suit would fall under Article 120 which gives to the Plaintiff a longer period of limitation.

The learned Chief Justice took the view that in the case before him the Sangali State paid the amount to Defendant No. 1 alone because in the opinion of the State he alone was entitled to the amount, that Defendant No. 1 received the amount because, according to him, he alone was entitled to It and that, therefore, neither in the case of the payer nor payee was there any suggestion that the amount was paid to the Defendant No. 1 not for himself but, at least in respect of a part of it, for some one else.

According to the Chief Justice, in a transaction of this nature it was impossible to con tend that the amount was received by Defendant No. 1 for the use of the Plaintiff. The learned Chief Justice further observed:

The case strongly relied on by Mr. Datar is a case reported in Mohamed Waheeb v. Mohamed Ameer, ILR 32 Cal 527 and as I shall presently point out, the facts in that case were entirely different from the facts before me. There we had, a case of co-mortgagees and one of the mortgagees received the money from the mortgagor and the other mortgagee instituted a suit for recovering his share and the Court held that Article 62 applied.

In that case, there was no dispute that the amount received by one of the co-mortgagees was being received not only for himself but also on behalf of the co-mortgagee and the payment was also made- by the mortgagor to discharge the mortgage in which two persons were interested. The observations made in that case on which Mr. Datar relies are after all observations to be read in the light of these facts.

But what is more, the authority of this case has been rather shaken by a subsequent decision reported in Anantaram Bhattacharjee Vs. Hem Chandra Kar and Others, .

The learned Chief Justice then stated the facts of that case and referred to the observations of Ghose J., ciuoted above.

The observations of Ghose J. in Anantaram Bhattacharjee Vs. Hem Chandra Kar and Others, and of Chagla C. J. in Lingangouda Marigouda Vs. Lingangouda Fakirgouda and Others, do support the position! of the Appellant, although the facts of those casesi are not similar to those of the present case. But the question is whether on the basis of these observations we shall be justified in setting at naught the view taken by the various High Courts) in India with regard to the scope of Article 62.

Of the two views that can be taken, on the interpretation of the Article one is that the Article should be strictly construed or in other words that the expression ''money received by the Defendant for the Plaintiff''s use'' should be given its literal meaning, and the other is that the expression should be understood in the sense in which it Is used in English Common Law as a count of action.

If the expression is strictly construed the Article can apply only to cases in which the Defendant receives money for the use of the Plaintiff and cannot apply to cases in which the Defendant wrongfully exacts money from the Plaintiff. But If the expression is understood in the sense In which It Is used in English Common Law as a count of action the Article will apply to all cases in which "the Defendant has received money which in justice and equity belongs to the Plaintiff under circumstances which in law render the receipt of it a receipt by the Defendant for the use of the Plaintiff.

In that case it will apply to suits "for money got through imposition (express or implied) or extortion or oppression or an undue advantage taken of the Plaintiff''s situation", and to cases in which "money is paid by the Plaintiff in discharge of a demand illegally made under colour of an office". The basis of the decisions cited on behalf of the Respondent is that the expression "money received by the Defendant for the Plaintiff''s use" used In Article 62 has to be interpreted in the sense in which it is used in English Common Law as a count of. action.

Chogla, C.J. himself admits that "the language used In Art, 62 is the language taken from English cases.:But, according to the learned Chief Justice, this particular form of action was necessitated.

In England oh account of the fact that, under the Ij&glJshiccbmmon -Law, .a suit in personam would not lie unless there is an express or implied contract, and there sis no necessity for such a count of action of India'' where the Courts are both Courts of Jawsand equity.'' -But the question is not whether araxunfeoot action of the kind that was prevalent in England under the English Common Law is necessary country,'' but - whether the expression money received by the Defendant for the Plaintiff in Article 62 is.used in the sense in which was used in English Common Law as a action.

On the strength of the rulings of the various Bhihbcsoutts in -India referred to above we preferred to take the view that the expression has to be un-8efc8tbod4h-Jthe -sense in which it is used in English Common Law as a count of action. The fact that CourtS;4n -India: are Courts of. law and equity cannot affect this question.. The Privy Council dealt with that aspect of the question in AIR 1918 PC 241 (WJ already referred to which was a case from Qeyton. Their Lordships said;

under principles which have always obtained Iain CeyJan, law and equity have been administered by the same Courts as aspects of a single system, and it could never have been difficult to treat an caliph analogous to that for money had and received -as maintainable in all case where the has received money which ex aqua to bono he" ought to refund.

Another reason given by Chagla C. J. for strictly construing Article 62 is that "a liberal construction would result in more Plaintiffs losing in a large'' number of cases on the ground of limitation". With respects to the learned Chief J untie, we'' doubt very much whether this consideration should weigh with the Court in the matter of construing the Article The other cases referred to by learned Counsel for the Appellant one is Municipal Board 61 The Municipal Board of Ghazipur Vs. Deokinandan Prasad, . That was a suit for refund of money paid by the Plaintiff-to the Municipal Board on account of octopi-upon some logs of wood imported by him into''''the Municipality.

was held that Article 62 would not apply to The case and that the suit would come within the iresldliary Article 120. But, the basis of the decision was''that5 $he cause of action of the Plaintiff arose Whett Erie-Municipal Board refused to refund the amount under Explanation II to R. 27 of the Municipal Account Code which was to the following effect:

Goods the property in which is not vested in the Government at the time they pass to the barrier -but which are imported with a view to the fulfillment of Government contract, shall on passing ''the; barrier, be declared in writing as intended for Itlieuse of the Government, e.g., in fulfillment of is certain specified contract.

The duty on them shall then be paid and they had become the property of the Judgment, the duty shall be refunded on a certificate to the effect signed by the departmental concerned provided that the application be within fourteen days of the date of that certificate.

Chamier and Rafigue JJ. observed:

If the Respondent had alleged the Board was wrong in demanding and taking octroi in the first instance ''the suit would" have been governed by Article 62, Schedule 1, Limitation. Act: See ILR 32 All 491 D. But the Respondent does not seem to allege that the Board was wrong in taking doctor in the first Instance.

He says that the Board was wrong in refusing regard and in paragraph 6 of the plaint he gives the date of the refusal as the date on which the cause of action arose. The decisions of their Lordships of the Privy Council in Gurudas Pyne v. Ram Narain Sahu, ILR 10. Cal 860 and Hanuman Kamat V. Hanooman Mandur, ILR 19 Cal 123 and other cases decided by Courts in India, seem to lay down that Article 62 applies only when the money at the time of receipt can be said to have been received by a Defendant for the Plaintiff''s use.

According to the Respondent''s allegations, as we understand them, the sum in question cannot at; the time of receipt be said to have been received by the Board for the Respondent''s use.

This decision is of no assistance to the Plaintiff.: The'' learned Judges in fact accept the principle laid down in ILR 32 AH 491 already referred''to.

The next case cited by; learned Counsel for the Appellant Is Peria Negamam Sri Lakshmi Vilasa Draviya Sagaya Nidhi Limited Vs. Varalakshmi Ammal, The suit''in that case was regarded as one for accounts. The Buit was brought by the Plaintiff for taking an account from''the Defendant-Bank in respect of 20 banc shares which stood in the name of the Plaintiff''s'' husband and'' for a decree against the hank ''Ion the balance amount that might be found due -to-the Plaintiff alter setting off the dividends on those shares against the liability that had been incurre by the husband in respect of the shares, It was held that Article 62 would not apply to the case. Abdur Rahman J. observed that Article 62 would apply only to cases where the Defendant, received money which in justice and equity belonged to the Plaintiff and in circumstances where the receipt by the Defendant would be regarded in law as a receipt to the Plaintiff''s use, and that it would not apply to a case where the receipt by the Defendant was on his own account and was not or could not be regarded to be on behalf of the Plaintiff. The learned Judge held that the suit was really- one for accounts and that therefore Article 62 would not, apply to the case.

Another case referred to is Kasturchand Okaji Marwadi Vs. Hari Govind Wagle, . In that ''case the (Z) Defendant entered into an agreement with'' the Plaintiff to finance certain litigation and to get half share in whatever the Plaintiff gained from that litigation. The Defendant got a decree and in execution of the decree, obtained the1 sale or as house and also: certain money from Court. Plaintiff % demanded accounts of the transaction but the Defendant refused to give the accounts.

It was held that the suit was really one for dissolution of partnership and that it would come under Article 120 of the Limitation Act and not undop Article 62.'' We do not think that this decision also. helps the Plaintiff. Wadia J., who decided the case quoted with approval the observation of Mukherjea J. in ILR 32 Cal 527 with regard to the scope of Article 62.

The next case cited is Shiba Kumari Debi Vs. Mt. Daksha Bala Dassi Chowdhurani and Others, that case certain Patni was sold for arrears of rent under the Bengal Patni Regulation and was _ chased by a third party: The Zemindars tookjc their dues'' from the purchase money and the lance remained in deposit. A decree-holder against one of the patnidars attached the surplus sale proceeds and realised his dues, some of them brought a suit to have the patni gale set aside.

That suit was decreed and the zemindars had to refund to the auction-purchaser the amount paid by him. Thereafter a suit was brought by the zemindars against the decree-holder to recover the amount which he had withdrawn by attachment under the money decree. It was held that

Would not apply to the: case. "We do not tfttokqthat0this decision has any application to 1ftefaet I of the present case.

Mahavdas Parmanand v. Jan Md. Ghularn Hyder,'' AIR 1942 Sind 37 is another case referred to by learned Counsel for the Appellant. The suit in .that case was one for recovery of money on the ground of failure of consideration for a contract'', Davis C. J. and Weston observed:

Article 62 applies to suits for the recovery of theories received by the Defendant for the Plaintiff''s use; arid we think it clear that money paid as consideration or part consideration in a contract of sale is not money paid for the use of the payer, except perhaps when the contract is of such a nature that it is void in law As held in a Abasbhai Shaikh Abdul Hussein Vs. Bhimji Malji Choksey, a test for the applicability of Article 62 is whether, when the money was'' paid, it was recoverable immediately by the Plaintiff.

The learned Judges held that it was Article 97 that applied to the case. This decision also does ''no scrappily to the facts of the present case.

Another case cited is Karam Elahi v. Hari Ram AIR 1933 Lah 112 In that case the decree-holder certified to the Court payments of amounts made by the Judgment-debtor in the previous, execution applications but failed to give credit for the amounts in the last execution application, executed .the decree for the full amount and purchased in court auction the house of the judgment-debtor.

It was held that-the period of limitation would start from the date of the auction sale and that the case would come under Article 120. Gorakpur Electric Supply Co. Ltd. Vs. R.E. Nariman and Co., is another case cited on behalf of the Appellant. That was a case in which the Defendant obtained a decree against the company and in execution of the decree realised amounts due �to the company from other persons after the company was ordered to be wound up. The suit was by the Official Liquidator for refund of the amounts.

It was held that Article 62 would not apply to . the case and that Article 120 would apply. Another case relied on is Tofa Lal Das Vs. Syed Moinuddin Mirza and Others, That was a case in which the Plaintiff sued for recovery of money paid to the Defendant by a mistake. It is clear that these Qecisions have no application to the facts of the present case.

The next case referred to is Laxman v. Bisharam, AIR 1923 Nag 94 . That was a case In which the judgment-debtor applied for recovery of money wrongfully recovered by the decree-holder. The application was treated as a suit. The question whether Article 62 of the Limitation Act would apply to the case was not discussed by the learned Judge who decided the case. It cannot therefore be regarded as an authority for the position contended for by the Appellant.

Yet another case referred to is Ahamed Mohidein v. Yehiya Alum AIR 1950 Hyd 52 . The suit in that case was regarded as a suit for (accounts and it was therefore held that Article 62 would not apply. Another case of the Hyderabad High Court-referred to is Joint Family Business of Ramchandra v. Shahdara Sharanpur Lightly AIR. 1953 Hyd 274 That was a suit for Recovery- of excess payment made under a mistake. It was held that Article 62 would not apply to the case. These two decisions also do not apply to the facts of the instant case.

The last case referred to by learned Counsel for the Appellant is U. sein Po v. U. Phyu. AIR 1930 Rang 210, The1 suit in that'' case also was treated as one for accounts and it was, therefore held that Art, 120 would apply to the case. This decision also lias no application to'' the facts of the present case.

For the reasons already stated, we hold that Article 62, of the Indian Limitation Act applies, to the present case and that the suit, brought more than three years from the date of the last payment by the Plaintiff, is barred by limitation.

In this view of the matter, it is not necessary to consider the objections raised by the Respondent to the findings of the Court below which are against him. We confirm the judgment and decree of the Court below and dismiss the appeal with costs.