Jenkins, C.J:— This is a case stated for our decision under section 617 of the Civil Procedure Code (Act XIV of 1882) by Mr. Chitty, the Chief Judge of the Small Causes Court.
The suit is to obtain a refund of town duties, and in defence the Municipal Commissioner has pleaded the bar of limitation and insufficient notice of action.
The facts might suggest the idea that the defence is technical, but I understand the defendant hesitates to discharge a claim not legally enforceable. Now the refund is claimable under section 195 of the City of Bombay Municipal Act, 1888, which provides as follows:—
“When any article upon which town duty has been paid shall he exported from the city, the full amount of the duty so paid shall, subject to the provisions hereinafter contained, be refunded.
“(2) Such refunds shall be paid under such rules as the Commissioner, with the approval of the Standing Committee, shall from time to time frame in this behalf:
“(3) Provided that—
(a) no refund shall be paid on any article, other than timber or flour, not exported within six months, or on any timber not exported within twelve months, from the date of its exportation;
(b) a refund shall be claimable on all flour exported from the city without proof of the importation of the same into the city, equal to seventy five per centum of the amount of the duty at the time being leviable on the grain from which such flour has been prepared;
(c) no refund shall bo paid unless the same is applied for within one month from the date of exportation;
(d) no refund shall be made of any less amount than fire rupees;
(e) no rale framed by the Commissioner under this section shall have effect unless and until it is confirmed by Government.”
Therefore the refund is only to be paid under such rules as the section indicates. There are rules and they are referred to in the case. On an examination of them it appears that the amount claimable as a refund is only repayable on the performance of certain conditions specified in clauses (a) to (g) of the rule relating to the refund on export by sea of goods other than grain.
The final step is that the Auditor will make out a return as per form H, “and on presentation of receipt (form E) to the Chief Accountant, the claim, after comparison with return H, is paid.” Now form H in this case has never been made out, so that there has not been the required comparison, and as a consequence the condition on which alone payment is to be made has not been performed. In strictness therefore neither of the referred questions arises, as the right to sue for the refund has not matured.
But then it is said on behalf of the defendant that this view of? the case is not open, inasmuch as no such objection was or could be urged by the plaintiff, and that we ought to hear the case as though the preliminary conditions had been complied with. I am willing to dispose of the case on that footing, and, to ascertain what on that supposition would be the relative positions of the parties, it is necessary to see what would have been done if the assumption was in accordance with the fact. This plaintiff would have, procured an examination of the goods; he would have calculated, formulated and carried in his claim: this claim would have been examined, the calculations checked, and ultimately the amount due to the plaintiff would have been settled and certified. The result would have been that there was an admission made by the person authorized in that behalf, that there was a definite sum due to the plaintiff and belonging to him: there would have been no uncertainty us to the amount payable or the plaintiff's right to be paid.
So we have to see whether under the circumstances notice would have been necessary. The section prescribing notice is 527, which is in these terms:—
His Lordship read the section (supra page 389) and continued.]
Now it is well established that provisions of this sort do not extend to all suits against persons intended to be protected. This is amply illustrated by decisions of the English Courts on cognate provisions, which are a valuable guide to us in this respeot. One principle of exception is thus stated by the late Lord Blackburn, while still a Judge of the Queen's Bench, in Selmes v. Judge where he says: “It has long been decided that such a provision as that contained in this section is intended to protect persons from the consequences of committing illegal acts, which are intended to be done under the authority of an Act of Parliament, but which by some mistake are not justified by the terms and cannot be defended by its provisions.
I agree that if a person knows that he has not, under a statute authority to do a certain thing and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute.” Again Mr. Justice Lush says (page 728-9): “It is dear they bona fide believed they were doing what the law allowed, and that is all that is needed to entitle them to the protection of the statute.” Mr. Justice Hannen's remarks were to the same effect.
The result appears to me to me to be that the person seeking the protection of the Act cannot claim that his conduct has any relation to the “execution of the Act,” if he knowingly and intentionally acts in contravention of its provisions. So here, if (as we have to assume) the amount payable by way of refund was ascertained and the plaintiff's right to receive it admitted, the refusal to refund would have been a deliberate and conscious contravention of the provisions of the Act. In such a case it would be impossible to hold that the money was bona fide withheld “in execution of the Act,” and such conduct would fall precisely within the description given by Lord Blackburn as disentitling a person to notice. I do not say thas this has actually been the conduct of the Municipal Commissioner; it has not; but it is what we have to attribute to him in acceding to the suggestion :hat we must treat this suit as though all the conditions precedent bad been performed.
There is another mode of approaching this case. It is established that notice is not required where the action is brought on a contract: for the conduct leading to the action is a wrongful act or omission under the contract, as distinct from one in the execution of the Act; and it is the breach of a specific contract that is the occasion of the right to sue. On the other hand, the exemption from this requirement does not apply to all suits in contract as distinct from suits on contract. This is not a fanciful distinction; the rules of procedure have for historical reasons been so moulded that a tort may give rise to a suit in contract by the application of a fiction resulting in the implication of a contract, while in fact there was no contract. The reason why a suit of this class is not free from the condition of notice is, that the suit is not in respect of anything done in breach of a specific contract but in respect of an act or omission in execution of the Act. The form of the procedure therefore is no guide to the character of the facts out of which the suit arises.
Having then arrived at these principles, I will consider whether on the required assumption it cannot be said that this would be suit on a contract. According to these required assumptions there would have been an examination and adjustment of the plaintiff's claim to refund and an admission of the amount due. This would have been such an admission and appropriation of the amount in question to the plaintiff's use as to support a suit on an account stated of. Roper v. Holand), and it appears tome that such a suit would for the purpose I am now considering be indistinguishable from a suit on a specific contract so that the requirement of notice would have no application (of. Garton v. G.W Railway)
I have not overlooked the decision in Shankar v. Mukta but that case as well as those on which it proceeds appear to me to be based on the special character of a ruzukhata and the inference to which it gives rise.
In the view I take, article 2 in the second schedule of the India Limitation Act, 1877 obviously cannot be a bar, and I therefore am of opinion that both the questions should be answered in’ the negative. I am glad that I can so hold, for it relieves the defendant of the unpleasant duty of refusing on a technical ground to discharge a claim to the payment of which (according to the stated case) the plaintiff is admittedly entitled.
Tyabji J.:— I concur.
Attorneys for plaintiffs :—Messrs. Unwalla and Pavri.
Attorneys for defendant :—Mssvrs. Crawford, Brown & Co.
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