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TMI Blog2013 (2) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... de an area of approximately 13,000 sq. meters. Rs. 25 lakhs as advance license fee was sought from the society. It was told that thereafter ITPO would confirm the space to be licensed as well as the duration of the license. Parties subsequently exchanged letters about the details of the space, the hall, license fee particulars such as what was to be charged per square meter, rebate, etc. At that time, during August, October and November 1990, three payments in the sum of Rs. 5 lakhs each were made by the Society to ITPO. On 26.11.1990, ITPO wrote a letter to the Society requesting that it wanted to know "the exact space requirement" of the Plaintiff Association for the exhibition; it also provided replies to queries made by the plaintiff. On 22.12.1990, (after the three payments were made) ITPO furnished the relevant guidelines to the plaintiff under which it used to license space to third parties Clause 1(iv) stipulated that a formal agreement would have to be signed between the parties. Despite continued correspondence, the parties could not agree on mutual terms. On 11.3.1991, ITPO sent a telex message to the plaintiff informing that it could offer the latter (i.e. the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt reserved a slot in its calendar. It also relied on Clause 7 (iii) of the guidelines, which applied and bound the parties. That condition reads as follows: "7(iii) In the event of cancellation of space all payment made till the cancellation will be forfeited." It was stated that the ITPO had forfeited the earnest money of Rs. 15 lakhs. 6. The following issues were framed on 8.12.1998: "1. Whether the suit is within limitation OPP 2. Whether the plaint has been signed and verified by a duly authorized person on behalf of the plaintiff? OPP 3. Whether there was no concluded contract between the parties? OPD 4. Whether the defendant had no right to forfeit the amount of Rs. 15 lacs deposited by the plaintiff? OPD 5. Whether the defendant is liable to pay interest? If so at what rate, on what amount and from which date? OPD 6. Relief." During the proceedings, the parties agreed that the documents filed may be read in evidence. 7. Having regard to the state of evidence and the deposition of PW-1, Mr. Hubert D'Souza, the secretary of the plaintiff who proved Ex. PW-1/1, learned Single Judge held that the plaint had been filed by a duly authorised person. On issue No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imji Malji Choksey AIR 1932 Bom 86. Both judgments dealt with Article 62 of the Limitation Act 1908. Counsel stressed upon the fact that though the impugned judgment has noticed these decisions, it has wrongly applied the ratio, to hold that Article 24 is inapplicable. It was argued that the said provision was apt, and applicable because in the absence of a contract, the defendant was bound to return the amount; that position existed from the day of the payment, and continued till the date of filing of suit, which was well beyond the three year period from the date of payment to the defendant. Apart from the question of limitation, the defendant ITPO did not urge any other ground in support of the appeal, in the oral hearings. 10. On the other hand, it was argued on behalf of the plaintiff that the impugned judgment does not disclose any error of law or fact to warrant interference by this Court in appeal. It was submitted that the learned Single Judge made a thread bare analysis of the relevant case law, and correctly concluded that the suit had been filed within the period of limitation. 11. Before a fuller discussion on the merits of the rival contentions regarding the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seek refund there and then. Under the English Law, an action for money had and received is one of assumpsit based on an implied or imputed contract. It is in the nature of an action for damages for breach of a promise, although the promise is not a real promise but one imported by fiction of law. In other words circumstances must be such that the action is based under the English Law on contract imputed by law." The Single Judge also elaborated that where the defendant occupied a fiduciary relationship towards the plaintiff, old Article 62 (i.e. new 24) was inapplicable and that assuming the claim could be described as the English „action for money had and received‟, nevertheless if there are other more specific articles in the Limitation Act- e.g., Article 96 (mistake), Article 97 (consideration which fails) Article 62 would be inapplicable. It was also held that if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts which occur later, Article 62 (new 24) would not apply. That article is premised on the footing that the plaintiff has a cause of action for instituting the suit the moment of the receipt. On this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vendee, this amount is liable to forfeiture. On the other hand, in case the transaction goes forward, the earnest money becomes a part of the purchase price. Distinction between earnest money and money paid in advance as part of the purchase price is thus both real and well-recognised. The amount of Rs.20,000/- paid in this case could, therefore, not be considered to be paid as a part of the purchase price under the contract which characteristic it could assume only when the transaction to sell went forward to the stage of completion. It is therefore, not easy to hold that this amount could be said to have been paid upon an existing consideration which afterwards failed. In terms, therefore, Art. 97 would seem to be inapplicable. Article 62 would also seem to be inapplicable to the case of earnest money for it is somewhat difficult to hold that this money was received by the vendor-company for the vendee's use. A faint attempt was at one stage also made by Shri Hardy to bring the case within Article 115 which provides a period of three years for compensation on the breach of any contract, express or implied, not in writing registered and not specially provided for in the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement to repay it or not. Even if nothing is agreed as to its repayment at the time the deposit is made, the obligation to repay arises upon the proper performance of the engagement by reason of the very nature of the transaction of deposit. If an express agreement is entered into for repayment of the deposit, the transaction still remains a deposit and its nature is not thereby altered. The essence of the cause of action for a suit for refund of a deposit is not the breach of the contract to repay it, but the fact that the transaction is a deposit which by its very nature is refundable. The person who holds the deposit and the person on whose behalf or for whose benefit the deposit is held as security are liable to refund it because it is a deposit. They are both in the position of depositories. Accordingly, the article applicable is Article 145 of the Indian Limitation Act and if for any reason this article is not applicable, there is no doubt that Article 120 is applicable to the present case." 16. In the facts of the present case, this Court is of the opinion that the money received by the ITPO cannot be described as what was for the plaintiff's use. It was pure and simple, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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