1. This a plaintiff's second appeal in a suit for refund against the defendant State, which has been dismissed by the Court below on the ground that it is barred under Article 62 of the Limitation Act. It has been placed before this Bench, having been referred by one of us, sitting singly, as the question of limitation involved in this appeal was considered by the learned single Judge to be not free from serious difficulties.
2. The material facts leading up to this reference lie in a narrow compass. The plaintiff was a firm dealing in cloth at Bundi. The Customs Department of the defendant State recovered from the plaintiff on certain cloth imported by It during the period extending from the 19th August, 1949 to the 29th August, 1949, a sum of Rs. 894/9/9 as sales-tax in addition to the prescribed duty. The plaintiff's case was that the State had no authority to recover any money by way of sales-tax. Consequently the plaintiff after giving the necessary notice under Section 80 Civil Procedure Code instituted the present suit for the recovery of a sum of Rs. 894/9/9 as principal and Rs. 29/2/- as interest plus a sum of Rs. I/II/-as notice charges, in all amounting to Rs. 925/6/9.
This suit was instituted in the Court of the Munsiff Bundi on the 19th July, 1954, that is, after a period of almost five years from the date of the recovery of the sales-tax. The principal defence and that is the only one on which the State relies at this stage is that the suit was barred by limitation, being governed by Article 62 of the Limitation Act which provides a period of three years from the date of the recovery of the money. The trial Court decreed the suit save for interest on the finding that although the suit was governed by three years' period of limitation, limitation was saved by certain acknowledgments held to have been made by the defendant State to the plaintiff with respect to the claim in question.
On appeal by the State, the learned Senior Civil Judge disagreed with the view of the trial Court on the last-mentioned question and consequently the plaintiff's suit was thrown out as barred by time. It was argued before the learned Judge on behalf of the plaintiff that the suit was governed by Article 120 of the Limitation Act; but this plea was repelled. Thereafter the plaintiff filed a second appeal to this Court out of which the present reference has arisen. It was conceded before the learned single Judge that the plaintiff did not rely on the various acknowledgments for purposes of limitation and there the matter must rest so far as this aspect of the case is concerned. It was strongly contended, however, before the learned Single Judge as it has been before us that the suit is properly governed by Article 120 of the Limitation Act and not Article 62. That is the only question for decision before us, and to this we propose to address ourselves at once.
3. Article 62 reads as follows :-
Description of suit Period oflimitation Time from which period, begins to run For money payable by the defendant to the plaintiff for money received by defendant for the plaintiff's use.
Three years;
When the money is received The words in this Article which require to be interpreted are these, namely, "for money received by the defendant for the plaintiff's use". We have been referred to a large number of cases by learned Counsel on either side in support of their respective submissions. To undertake an examination of all these cases individually does not appear to us to be a profitable task and we, therefore, do not propose to attempt it.
4. We consider it sufficient to say that in one class of cases the view taken is that the crucial words in this Article, to wit, "for money received by the defendant for the plaintiff's use" have been borrowed from English law and practice and point to an action of assumpsit founded upon an implied contract and waiver of any tort committed and that properly construed they would cover suits where 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. In the language of Lord Mansfield, C. J., in Moses v. Macfarian, (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, or, 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 to the use of the plaintiff.
On this view, a sum received by the defendant, even though it might have been taken wrongfully from the plaintiff is treated as having been received for the plaintiff's use. Further, according to this view the application of the Article is not confined to the class of cases where the defendant intends to receive money to such use or even where the plaintiff may not so intend. As examples of cases in which this view has been taken, reference may be made to Mahomed Wahib v. Mahomed Ameer, ILR 32 Cal 527; Biman Chandra v. Promotho Nath, AIR 1922 Cal 157 (FB); Abasbhai v. Bhimji, AIR 1932 Bom 86; Bhusawal Municipality v. Nusserwanji, AIR 1940 Bom 252; Municipal Council, Dindigul v. Bombay Co., Ltd., AIR 1929 Mad 409; India Sugars and Refineries Ltd. v. Municipal Council, Hospet, AIR 1943 Mad 191; State of Madras v. A.M.N.A. Abdul Kadar Tharaganar Firm, AIR 1953 Mad 905; Rajputana Malwa Rly., Co-operative Stores v. Ajmer Municipal Board, ILR 32 All 491; Municipal Board Ghazipur v. Deokinandan Prasad, AIR 1914 All 338; Mt. Durga Devi v. Ram Nath, AIR 1919 Lah 47; Nihal Singh v. Secretary, Gurdwara, AIR 1926 Lah 228; Municipal Committee, Amritsar v. Amar Dass, AIR 1953 Punj 99; Chunilat v. State of Madras, AIR 1958 Andh Pra 670; D. G. Shankarappa v. M. Marulusuddiah, AIR 1960 Mys 278; T.S.H.W. Co-operative Society Ltd. v. Sundaram Mudaliar, (S) AIR 1957 Trav-Co 61 and Johari Lal v. Bihar State Co-operative Bank Ltd., Patna, AIR 1959 Pat 477.
5. On the other hand, it has been held in certain other cases that granting that the language used in Article 62 is based on and borrowed from the English law and practice, it must be remembered that in England it was necessary for the Courts to find an implied contract to provide a remedy to suitors in personam in a great variety of cases, and that was why the Courts there were anxious to infer or imply a contract therein so that the plaintiff might not fail by reason of any technical defect, but such a necessity did not and does not arise in India, as our Courts are both Courts of law and equity, and questions of formal procedure need not present any difficulty in our country, and, therefore, it has been laid down that it would not be safe to follow English cases in construing Article 62 and that its application should be confined to those cases only which strictly fall within its language. In other words, it is maintained that the application of Article 62 should be limited to those cases only where money has been actually received by the defendant for the plaintiff's use, directly or by necessary implication but not to others, and cases which might be held on the ground of legal fiction to fall within its ambit on the wider meaning which has been discussed above should be properly left to fall outside its legitimate scope.
It has also been pointed out in some of the cases taking this view that a wider construction is bound to result in plaintiffs losing their suits on the ground of limitation in a larger number of cases than if it. were to be strictly construed as ia the latter case many of the suits which on the wider view might be held to fall under this Article would then be governed by Article 120 which gives a six years' period of limitation to the plaintiff for bringing his suit instead of the three years period under Article 62. A forceful exposition of this view is to be found in Anantaram Bhattacharjee v. Hem Chandra, AIR 1923 Cal 379 and Lingangouda v. Lingangouda, AIR 1953 Bom 79.
Thus in Anantaram's case, AIR 1923 Cal 379, Ghose, J., who delivered the judgment of the Bench observed as follows :-
"The common law form of action for money had and received grew out of the circumstances 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 the plaintiff was unable to establish any contract by evidence, it was found necessary to have recourse to a fiction of a promise to pay "implied in law" in 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 in the case of Sinclair v. Brougham, 1914 AC 398 (Speech, of Lord Haldane, L. C., at pages 415-417 and of Lord Sumner at pages. 456-457). It is pointed 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 adopted 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 would come under Article 62 of the Limitation Act. In India, law and equity are administered by the same Courts, which are untrammelled 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 and Co., Ltd., 1918 AC 563 : (AIR 1918 PC 241) furnish an illustration of 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."
6. Again in Lingangouda's case, AIR 1953 Bom 79, Chagla, C. J., has observed as follows:-
"If anything, in India Article 62 should be more strictly construed, because a 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"
It may be pointed out, however, that the Division Bench of the Calcutta High Court which decided Anantaram's case, AIR 1923 Cal 379 (supra) does not seem to have noticed its Full Bench decision in AIR 1922 Cal 157 (FB) (supra), although one of the Judges (Walmsley, J.,) was a party to both these decisions, in which a wider meaning was apparently put on Article 62 in consonance with the form of suit under the English Law which conforms to this phraseology. It may be further pointed out that the decision in Anantaram's case AIR 1923 Cal 379, has been dissented from in AIR 1932 Bom 86 by a Division Bench consisting of Beaumont, C. J., and Rangnekar, J.
It is further remarkable that the decision of Chagla, C. J., in Lingangouda's case, AIR 1955 Bom 79, makes no reference to the bench decision of the Bombay High Court in AIR 1932 Born 86 or of Kania, J., in AIR 1940 Bom 252 (supra). It may also be of interest to notice here that the view taken by the Calcutta High Court in AIR 1923 Cal 379 (supra), and the Bombay High Court in AIR 1953 Bom 79 (supra), has been dissented from in the bench decision of the Travancore Cochin High Court in (S) AIR 1957 Trav-Co 61 (supra). A learned single Judge of the Allahabad High Court in Nirmal Kumar v. Satya Prakash, AIR 1961 All 109 has followed Lingangouda's case and held that a strict construction should be put on Article 62. Here again, it is permissible to point out that no notice seems to have been taken of the bench decisions of that High Court in ILR 32 All 491 (supra), and AIR 1914 All 338 (supra). Practically the same view has been taken by a single Judge of the. Gujarat High Court in Harji Gram Panchayat v. Lakhiram, AIR 1962 Guj 14 in which reliance was placed on the decision in Lingangouda's case AIR 1953 Bom 79 (supra).
7. This being the state of law in the various High Courts in our country and there being no decision of our own Court which directly governs the. point before us, we are free to confess that the position with which we are faced is by no means happy. The question is, what is the precise meaning of the phrase "for money received by the. defendant for the plaintiff's use". Or, if we might put it in a slightly different way, what was the intention of the Legislature in employing this phraseology. It is correct that that intention, is to be gathered from the words used; but if we might respectfully submit, where the words used are technical or as it is some times said 'of art', then perhaps it would not be right for us "to hold on a priori considerations that they must be understood in their plain non-technical sense. For, the putting of such a meaning on an expression of this character would perhaps not be giving effect to the intention of the Legislature when that could be done and such a course, in our opinion, would not be warranted on any sound principles of interpretation of Statutes. We should also like to point out that it would be no sufficient answer against the adoption of this interpretation merely to say that this interpretation is based upon English law and practice, for the simple reason that there can be no gainsaying the position that the words, we are called upon to interpret, have been borrowed from that source and which fact indeed is accepted in the one as in the other class of decisions to which we have referred above.
That being so, we think, with all respect, that the meaning which these words bear in England cannot be rightly ignored. This should, however, be understood as being subject to one important qualification that if there is any specific Article which governs a particular class of suits under our Limitation Act which might otherwise have fallen under Article 62, then that Article would have to be applied in preference to the general Article 62. Thus, for example, where a suit is brought on the ground of mistake, it would be governed by Article 96 of our Limitation Act and not by Article 62 which might have been applicable if Article 96 had not been there. Similarly suits falling under Article 87 or 95 or 97 of our Limitation Act will have to be governed by these articles and not by Article 62 on the principle that a general article must yield to a specific one.
8. Our conclusion, therefore, on a most careful and earnest consideration that we are able to give to this vexed matter is that we find it difficult to escape the view, on the whole, that the correct interpretation to be put on the key words in Article 62 is the one which should conform to the meaning of these words in the English cases and that a simple or literal interpretation of these words which appear to us to be clearly technical as discussed above would not be correct. That being so, it must follow that Article 62 governs suits for money, had and received, not only where the defendant may have actually received money for the use of the plaintiff as his agent or in a like capacity, but it also governs suits for money whereof it can be rightly postulated that the defendant has received money which he had no right to receive and the receipt whereof by the defendant therefore amounts in law or by a legal fiction to a receipt by him for the plaintiff's use. Further, as Article 62 is a general article for this class of suits, that is, for money had and received, it must give way where a suit of this nature is specially provided for such as under Articles 87, 96, 97 or the like of our Limitation Act. We hold accordingly. It must further follow on this view that Article 120 which is a residuary article cannot be attracted in such cases.
We should also like to point out here that once we come to the conclusion that Article 62 so interpreted correctly applies to cases of this type, there can be hardly any warrant for taking a different view on the mere ground that another, and, what is called, a more strict interpretation of this Article should be adopted because that would give a longer period of limitation to the plaintiffs and therefore more suits would be saved from the bar of limitation thereby. Finally we should also like to add that if that is not the correct interpretation to put on Article 62, which interpretation, if we may say so with all respect, is in conformity with the preponderance of judicial opinion in our country, it is for the Legislature to intervene and express its intention more clearly than seems to have been done at the present moment.
9. Let us now see how the principles enunciated above apply to the case before us.
10. The present action is for refund of a definite sum of money which was recovered by the defendant State from the plaintiff by way of sales-tax. There is a concurrent finding of the two Courts below that the recovery of this tax was without any authority of law and this finding has not been challenged before this Court and it must therefore be accepted as correct. Of a case like this, it can be rightly predicated that the money which was exacted by the defendant from the plaintiff was immediately returnable to him, that is, at the very time of receipt, there being no sanction of law behind it, and, therefore, the defendant should be held to have received it in law for the plaintiff's use. Therefore on the interpretation of Article 62 which we have feit persuaded to accept as correct, the suit properly falls within the ambit of Article 62 and no other and the residuary Article 120 cannot be held applicable to it. In this state of the law, we hold that the court of first appeal was right in dismissing the suit as barred by time.
11. Before we conclude, we may also mention that reliance was placed on behalf of the plaintiff appellant on the decisions of the Privy Council in Gurudas Pyne v. Ram Narain Sahu, ILR 10 Cal 860 (PC) and Annamalai v. Muthukaruppan, AIR 1931 PC 9 in support of his submission that the suit was not, barred by time being governable by Article 120 of the Limitation Act and not by Article 62 thereof. As to this, we consider it sufficient to say that the facts of those cases are entirely distinguishable from that of the case before us and consequently they do not afford any guidance for the decision of a case like the present.
12. For the reasons mentioned above, this appeal fails and is hereby dismissed, but under the circumstances we would leave the parties to bear their own costs throughout.