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TMI Blog1964 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... . Their duty was to procure rice from specified areas at prices specified by the Government from time to time and to deliver it at prices so specified, to the Government or to persons nominated by it or to other licensed purchasers. The procurement price was in each case lower than the selling price and the procuring agents were under the contract entitled to the difference between the two prices. During the period with which we are concerned, three successive orders were made by the Government specifying the prices arid in each case there was an increase. The first increase in prices took effect on July 27, 1947, the second on or about December 6, 1947 and the third on November 21, 1948. On the dates on which each of these orders came into force, each appellant had lying with him in stock certain quantity of rice. This had been procured by the agents earlier and therefore at the then prevailing lower purchase price. The appellants had to sell this rice at the new increased price and hence became automatically entitled to a larger sum than they were before the increase. The enhancement of the procuring agents' profit was entirely due to the Government action in increasing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract between a procuring agent and the Government, even if that contract was of agency, the procuring agent was to procure and sell rice at the prices fixed and prevailing at the time respectively of the procurement and sale. It is not disputed that the difference belonged to him. It was in fact said that was the commission to which he was entitled under the contract as an agent. If this is so, the procuring agent would under the contract be entitled to keep the larger difference caused by the selling price having been increased after his procurement. Hence it seems to me that under the contract, irrespective of whatever kind it was, the difference, even though it became larger, belonged to the procuring agent and the Government had no right to it. Another question that arises in these appeals in regard to the moneys collected by the methods other than requisition and releases is whether the claims of the appellants for the refund were not barred. I agree with my brother Ayyangar that Art. 62 of the Limitation Act governed the case and the claims were not barred if the suits in respect of them were filed within the time there specified. With regard to the meaning of the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenge to the legality of the Essential Supplies (Temporary Powers) Act under which the requisition and release had been made. Nor was it contended that under the Act the Government could not requisition the stock of rice in the possession of a procuring agent at the price previously prevailing, nor that having done so, it could not sell the rice so requisitioned at the price subsequently fixed. If it could so sell the rice requisitioned to an outsider, it could equally sell it back to the procuring agent from whom it was taken. This is precisely what was done in this ,case. The Government's acts were perfectly within its statutory powers and legal. It is not a case where the appellants had been compelled to obtain the release on payment to avoid going out of trade as was held in the Australian case to have happened. The appellants were free not to pay and to obtain or not to obtain the release. If they had not, it has not been said that their trade would have stopped. The ratio decidendi of the Australian case that the trader had been compelled to pay, which was why the payment was held to have amounted to a tax, does not apply to the case in hand. There is not the slightest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in respect of two matters; (1) Procurement of paddy and rice, and (2) Dealing in them. For this purpose the power vested in the State Government under the Essential Supplies (Temporary powers) Act, 1946 was utilised and two orders "The Foodgrains, Procurement Order, 1946" (later modified by the Foodgrains Intensive Procurement Order, 1947) and the Foodgrains Licensing Order, 1946 were issued. Under the former the procurement or purchase of foodgrains including paddy was placed under control and the right to purchase was restricted to the Government and to the Procurement agents appointed and notified by them. The appellants were among those who were appointed as "Procuring agents" under that order. The sales to be effected by the procuring agents of the milled rice were also placed under control by virtue of the Licensing Order which prohibited all trade or dealing in foodgrains including rice except by those who held licences and subject only to the terms and conditions of the licence. The appellants were each one of them licensed to deal in rice under this Licensing Order. It might be mentioned that the price, at which paddy could be Procured as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collections as also the defences raised to the suits, it is necessary briefly to advert to the statutory provisions which furnish the background in which this levy came to be made and collected. As is well-known, at the end of the Second World War the country was faced with a scarcity of foodgrains with the result that statutory rationing had to be resorted to in most urban areas; and for the purpose of enforcing rationing stocks of paddy and rice had to be made available. Power in this behalf was originally exercised under the Defence of India Act and the Rules framed thereunder and by subordinate legislation undertaken by virtue of powers conferred by the Defence of India Rules. When the Defence of India Act ceased to be in force on the expiry of six months after the termination of the war and as this scarcity still continued the Essential Supplies (Temporary Powers) Act, 1946 repleading and replacing the Essential Supplies (Temporary Powers) Ordinance, 1946 (XVIII of 1946) was enacted to be in force originally for 5 years till April 1, 1951 to deal with the probelm of maintaining supplies essential to the community. Under S. 3 of this statute "The Central Government, so f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent agents for buying up paddy from the producers i.e., cultivators or landholders. They were also licensed under several Control Orders to which reference will be made later, to deal in the paddy which they procured or the rice into which they converted the paddy in their mills. The prices at which they could procure the paddy from the producers was fixed by executive order issued under the powers contained in s. 3 (2) (c) of the Essential Supplies (Temporary Powers) Act. Similarly, the price at which they could sell to wholesalers was likewise fixed. While things were going on in this state with he prices fixed operating to determine the purchase and the sale price of these procuring agents, Government raised the purchase and sale price of paddy and rice in or about July, 1947. They then directed these procuring agents to pay over to them as a "surcharge the difference between the original and the enhanced price on the stock of paddy held by them on the day previous to the rise in price. These miller-merchants resisted the levy but were forced to make the payment which they did under protest. There were similar rises in prices on December 7, 1947 and on November 21, 1948 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o them by the relevant agreements, licences, notifications etc. For this purpose it is necessary to set out the various statutory provisions under which the appellants functioned as well as the terms and conditions of the agreements entered into by them with the Government. We shall also narrate in some detail the circumstances in which the " surcharge" were imposed and collected as they bear on the points urged before us in these appeals. The first relevant statutory provision to which it is necessary to advert in this connection is the Madras Foodgrains Procurement Order, 1946 dated the 15th June, 1946 issued under Rule 81 (2) of the Defence of India Rules by the Government of Madras. It applied to several districts in the State, among them East Godavari, West Godavari and Krishna with which these appeals are concerned. Paragraph 1 of this Order required "every person who whether as holder, occupier, tenant, sub-tenant or licensee or in any other capacity cultivates any land with paddy during the Fasli 1355 or Fasli 1356 or who receives any portion of such paddy or rent or interest or repayment of loan in kind" "to sell the surplus of such paddy as deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each one of the appellants reads "Agreement executed by Procuring Agent/Autho- rised wholesale Distributor." It then proceeds : "I...... having been appointed a dealer for the purchase, storage and distribution of paddy, rice or. . . under the Intensive Procurement Scheme and or Informal Rationing Scheme, shall abide by all the provisions prescribed from time to time by or under the said schemes ind any directions issued thereunder In particular- I undertake to purchase paddy, rice.... that are available for purchase in the area allotted to me at the rates prescribed from time to time by the Commissioner of Civil Supplies, Madras, or any officer authorised by him in this behalf. I undertake to store paddy, rice or millets purchased by me in proper godowns and to be responsible for their safe custody. I also undertake to sell the stocks of paddy, rice or millets with me to the persons to whom I am directed to sell it at such rates as may be prescribed from time to time. I agree to deposit with the District Supply Officer........ District ₹ 2,000/- against the fulfilment of this undertaking. I agree to the forfeiture by the District Supply Officer........ D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men- tioned in paragraph 1............" Of course, these licenses were granted on applications made in statutory form by the several applicants and a paragraph in this application read : "I have carefully read the conditions of licence given in Form A of the Second Schedule to the Foodgrains Control Order and I agree to abide by them." It need hardly be pointed out that the prices at which purchases and sales by the procuring agents, wholesalers and retailers could take place were all determined by orders issued from time to time, under ss. 3(1) and 2(c) of the Essential Supplies Act, and these dealers were enjoined strictly to adhere to them on pain of prosecutions and cancellation of their licences. The prices fixed varied from district to district and, of course, between several varieties of paddy and rice. In their fixation allowance was made for transport charges by adding the freight to the prime cost. It is not necessary to go into the details of these prices but it is sufficient to state that they were varied from time to time. Pausing here, it is necessary to refer to the manner in which the miller-procuring agents disposed of the stock which they had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by the supplier. 2. The District Supply officer will have the right to reject the whole or any portion of the paddy or rice supplied under this agreement on the ground that the paddy or rice supplied is different from or inferior to the sample tendered by the supplier and accepted by the District Supply officer or that the packing is defective or that there is undue delay and default in supplying or on any other ground whatsoever. He will also have the right to accept the supply and to reduce the rate within six weeks from the date of despatch of the consignment, in case he considers either suo motu or otherwise the paddy or rice supplied to be inferior in quality to the sample tendered. The decision of the District Supply Officer regarding the quantity and quality shall be final and binding and on the supplier. 3. In the event of the District Supply Officer rejecting the whole or any portion of paddy or rice, the supplier shall be bound to supply paddy or rice of the proper quality and quantity within such extended time, if any, as may be given to him by the District Supply Officer. If no time is given or if the time is given and the supplier fails to supply the balance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 27, 1947. Instructions were issued to the Collectors and revenue officials to ascertain the quantity of rice and paddy lying with procuring agents as also wholesalers at the end of the day's transactions on July 26, 1947 i.e., the stock remaining unsold which bad been obtained by them at prices prevailing before the enhancement of price which was to have effect from the next day and to require them to pay over to the Government as "a surcharge" the enhanced prices at which they were permitted to sell after that date, namely, eight annas per maund of paddy and twelve annas per maund of rice. Demands were made on some of the appellants for the payment of this surcharge. When they failed and neglected to pay surcharge demanded they were threatened with the cancellation of licences which they held under the Licensing Order and by reason of this threat, it is stated that, they made the payments demanded from them. A similar and further increase in price was effected in the first week of December, 1947. The increase was ₹ 2 per maund of rice and Re. 1 16 1 - per maund of paddy. The procuring agents, wholesalers and others who had stocks were, by the orders of Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment directed the Collectors to levy on all stocks of paddy and rice with the procuring agents, wholesalers and retailers on the evening of November 20, 1948, a further surcharge and recover the same from them. Some of the appellants paid this amount under protest; in the case of others the amount of the surcharge was deducted from the sums payable to them by Government for the supply by them of rice. In the case of certain others the Board of Revenue which had found that there were some merchants who had failed to pay the two earlier surcharges that had been imposed, suggested the adoption of a new method in order to realise the sum. This was that the Collectors should issue orders of requisition of paddy in the possession of these merchants in respect of the quantities which were ascertained as being with them on the 20th of November, 1948, and release the stocks by cancelling the requisition order only on their payment of the surcharges or on their executing at writing agreeing to make the payment. We shall have occasion to refer to the special defence raised by Government in respect of this class of stockholders in the proper place. With this narration we are now in a pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the foodgrains purchased by them and obtained loans from banks and other financing institutions. They could effect a sale of the -rain with them subject, however, to two conditions : (1) the purchaser must be one authorised to buy, (2) the price should not exceed that fixed under the notification and orders issued from time to time, i.e., sales at free market rate were not permitted. Prima facie, therefore, it would appear that the procuring agents were merely conducting their business in the purchase of paddy and the sale of rice, on their own account, subject however to the regulation and restrictions imposed by the statutory orders and the licences issued thereunder which enabled Government to effectively control in the acquisition and distribution of foodgrains through the usual trade channels to the ultimate consumer in an orderly and equitable manner. Learned Counsel for the State, however, urged that the true legal relationship had to be determined on other considerations. First, there was the obligation cast by para 1 of the Foodgrains Procurement Order on producers of foodgrains to sell the surplus of their paddy as determined by the authorities to the District C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of these submissions learned Counsel referred us to the fact that in the Notification appointing some of the plaintiffs as procuring agents, published in the Krishna District Gazette they were referred to as "village procuring agents for paddy or rice on behalf of Government" in their respective villages. Our attention was also drawn to a communication by the Collector of Kakinada dated April 26, 1947 in which he referred to the purchases of paddy by the procuring agents as having been made " on Government account". It may be pointed out that the order last referred to was to direct these "agents" not to engage in private trade apparently in connection with the sale of the paddy procured. This last document might be ignored as it emanated from the Collector and, as is clear from the context in which it occurred, that it was meant as a warning to the procuring agents not to sell the procured paddy or rice except to those authorised to purchase them. The point that has now to be considered is whether the description of the plaintiffs as "pro-curing agents" and the undertaking by them in the agreements which they executed to purchase the paddy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gents were, in fact and in law, agents. No doubt, the description in the Procurement Order and the agreement as "agent" is of some value, but is not decisive and one has to gather the real relationship by reference to the entire facts and circumstances. To start with, it is clear that as the purchases were made by the procuring agents out of their own funds, stored at their own cost, the risk of any deterioration, draige or shortfall fell on them, they were the full owners of the paddy procured and they pledged the goods for raising funds. This aspect of their full ownership of the grain purchased is highlighted by the fact that they entered into agreements with the Government itself to sell the rice with them to District Supply Officers at the controlled market prices. Any contention that the procuring agents were not full owners of paddy or rice procured by them must manifestly fail as being inconsistent with the basis upon which this agreement by them to sell to Government was entered into. If further confirmation were needed it is provided by the fact that on the sales by procuring agents to Government under their Supply agreement sales-tax was payable which on the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every activity connected with it subject to licensing and to the directions to be issued in pursuance thereof and not directly to engage in the trade in foodgrains. The respondent can derive no advantage from the obligation on the part of the procuring agents to store the paddy or rice properly a stipulation on which Mr. Agarwala laid considerable stress-and this for two reasons : (1) The purpose of the clause was to ensure that there was no loss of foodgrains which were then a scarce commodity. That this is so would be apparent from the terms of s. 3 (2) (d) of the Essential Supplies Act which was effectuated by cl. 9 of the licence granted under the Madras Foodgrains Control Order, 1947 which applied to all dealers in foodgrains, be they procuring agents (who also, as stated earlier had to obtain and obtained these licence+;), wholesalers or retailers. This clause reads : "9. The licensee shall comply with any directions that may be given to him by the Government or by the officer issuing this licence in regard to the purchase sale or storage for sale of any of the foodgrains mentioned in paragraph (1 ).............. " The second reason is that the agreement execute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchasers specified by Government. It was in such a situation that an agency was held to arise. The position in the case before us is totally different. By reason of the exercise of statutory power trade in foodgrains was controlled and placed under a licensing system. No persons could buy or sell rice or paddy exceeding specified' limits of quantity unless be held a licence to do so. Dealers were- (1) A.I.R. 1961 Assam 64. classified into three classes, procuring agents. wholesalers and retailers. We are now concerned with procuring agents. Before the introduction of the licensing system, the millers as part of their business used to purchase paddy from growers, hull them in their mills and sell the rice obtained to wholesalers who in their turn sold to retailers from whom the consumers obtained their requirement. This method of trading and the same trade channels were utilised by the Government for the purpose of exercising control over the acquisition and distribution of foodgrains. In the first instance, the supplies available with producers for procurement was determined by Government so as not to leave with them more than what could reasonably be needed for their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment had obtained a pecuniary advantage by availing themselves of their position. We must plainly confess that we are unable to appreciate this argument. A fiduciary relationship would, no doubt, have arisen if the plaintiffs were agents, but if this were rejected we do not see on the basis of what relationship the fiduciary obligations can be rested. The purchase of paddy and rice by them was not as benamidars for Government, for their purchases were on their own account with their own monies though at prices fixed by the Government because of the control orders; they could sell their good, to others, only the buyers had to be licensed as also to the Government. The control exercised under statutory laws in respect of these matters cannot obviously render the trade of the plaintiffs one which they carried on for the benefit of the Government. If so, we fail to perceive the legal basis upon which the plaintiffs could be said to hold the stocks of grain with them for the benefit of Government. We have already pointed out that all risks of loss, deterioration, interest charges, godown rent etc.. were all their responsibility. In the circumstances, we consider there is no basis for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and remaining with them on July 26, 1947, December 6, 1947 and November 20, 1948. Under the Foodgrains Control Order under which they were licensed to deal in foodgrains, they were entitled to sell the stocks with them at the prices fixed under the Price Control Order and prevailing on the date of the sale. They would, therefore, have, on an increase in the selling price, the benefit of the enhanced prices. It was this that was sought to be mopped up by Government by the three impugned orders by which the difference between the old and the new prices was directed to be collected as "surcharge". It was not suggested that the surcharges could be justified under any of the provisions contained in the Essential Supplies (Temporary Powers) Act. They were not imposed by notified orders promulgated under S. 3 of that enactment and if they were, the question would have to be seriously considered whether such orders would be within the rule making power under that Act. We have already pointed out that they could not be justified as authorised directions which were permitted to be issued either ,under the Procurement Order, the agreement executed in pursuance thereof or the Foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y executed a writing agreeing to pay the amount of surcharge which agreements they honoured by making the payment demanded. Mr. Agarwala conceded that if the surcharges were illegal, such amounts as were paid on demand under protest, the amounts collected by withholding sums due from Government, as well as sums collected on threats of cancellation of licences would all be recoverable by the several plaintiffs. He, however, contended that in those cases where the foodgrains were requisitioned and released on the execution of agreements to pay the surcharges which were implemented the plaintiffs could not recover, and for two reasons : (1) That the Government had the power to requisition the stock and direct the traders to sell the foodgrains to Government and it might therefore be taken as if the requisition had been made on terms of paying for the stock the price payable on an earlier day, and (2) That by reason of the agreements which they executed, as a condition of the release of the stocks, they had bound themselves to make the payment, and their payment in accordance with their agreement was a voluntary payment which could not be recovered. This point based on the agreements a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the amount due from the Government, merchants who voluntarily entered into agreements of the type we have just set out, stood on a different footing and that in their case they could not legally claim a refund of the, amount thus paid in pursuance of these agreements. The High Court was apparently inclined to accept this submission. With great respect to the learned Judges we consider that there is no substance in this argument. If the theory that the plaintiffs were the agents of the Government be discarded as untenable, there would be no legal basis at all for the surcharge. It would then be in effect a tax imposed by an executive flat without any legislative sanction on the capital value of the stocks of foodgrains held on a particular date. In this connection reference may be made to Attorney General (N. S. W.) v. Homebush Flour Mills Ltd.(1) where a scheme by which flour was expropriated by the State at a "declared" price and subsequently sold by the Crown at a "standard" price, the former owner being given the option of buying back flour at the latter price was held to constitute a tax. Mr. Agarwala had to concede that if the surcharge was in substance a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption of food and taking the necessary steps for maintaining proper supplies. It was observed "The powers so given are no doubt very extensive, and very drastic, but they do not include the power of levying upon any man payment of money which the Food Controller must receive as part of a national fund and can only apply under proper sanction for national purposes. However, the character of this payment may be clothed, by asking your Lordships to consider the (1) 127 Law Times 822. necessity for its imposition, in the end it must remain a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges and the result is that the money so raised can only be described as a tax the levying of which can never be imposed upon subjects of this country by anything except plain and direct statutory means." Lord Wrenbury expressed the same idea in slightly different language when he said : "The Crown in my opinion cannot here succeed except by maintaining the proposition that where statutory authority has been given to the executive to make regulations controlling acts to be done by His Majesty's subjects, or some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greements were taken from some of these merchants affords no defence to their claim for refund. What remains for consideration is the defence based upon the claim being barred by limitation. The contention urged on behalf of the State is that the claim for a sum not legally due but illegally collected by Government which was the basis of these suits was governed by Art. 62 of the Indian Limitation Act which provides a period of three years from the time when the money is received. That Article reads ----------------------------------------------------------- " Description of suits Period of limitation Time from which which period begins to run ------------------------------------------------------------ 62. for money payable Three When the money payable by the years is recieved" defandant to the plaintiff for money,recived by the pliantiff's use ------------------------------------------------------------- If this Article were applied the portion of the claim in Civil Appeal No. 306 of 1962 relating to the refund of surcharge imposed in July, 1947 and the entirety of the claim in Civil Appeal No. 644 of 1962 would be barred. The suit out of which Civil Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion time from which suits period begins to run ----------------------------------------------------------- 120. Suit for which Six yaers When the right to no period of limitation sue accrues" is provided elsewhere in this schedule. ----------------------------------------------------------- As Article 120 can apply only if no other specific Article were applicable, we have to examine the question whether there is any other specific Article applicable and in particular whether the language of the first column of Article 62 covers a suit making a claim of the nature made in the plaints before us. The contention urged on behalf of the appellant in Civil Appeals 306 and 644 of 1962 was that the Article refers to "money payable by the defendant to the plaintiff" only in those cases where "the money was received by the defendant for the plaintiff's use". The latter condition that the money which is sought to be recovered must have been received by the defendant for the plaintiff's use should, it was urged, be literally satisfied before that Article could be applied. In other words, the contention was that that Article could not apply unless at the mom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of indebitatus assumpsit. There has been some difference of opinion observable in the cases decided by the several High Courts as to the circumstances in which Article 62 could be invoked. The controversy has ranged on the point as to whether there ought to be a literal compliance with the last part of the first colunm of the Article before it could be applied. This in its turn, as we shall show presently, stems from a difference of' opinion as to the rationale on which the action for money had and received rests in the English Law. The doctrine on which the action for "money had and received" was based was propounded by Lord Mansfield in Moses v. Macferlan(1) where it was explained that it lay "for money which ex aquo et bono the defendant ought to refund" and in a later case (2) as "a liberal action, founded on large principles of equity, where the defendant cannot conscientiously hold the money". In later decisions it was said to be based not merely on an equitable doctrine but was a Common Law right("). The jural basis on' which the action was originally supported, was a promise to pay by the defendant implied or imputed by law. Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since then with only a change in its number. We have, therefore, to see what exactly the draftsmen of this Article meant when it was first introduced in 1871. In Mahomed Wahib v. Mahomed Ameer(1) Mookerjee, J. explained the basis of Article 62 in these terms : "The Article, when it speaks of a suit for money received by the defendant for the plaintiffs use, 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." In other words, the learned Judge held that it was not necessary in order to attract Article 62 that at the moment of the receipt the defendant should have actually intended to receive it for the use of the plaintiff and that it was sufficient if the receipt was in such circumstances that the law would impute to him an obligation to retain it for the use of the plaintiff and refund to him when (1).L.R. 32 Cal. 527 at p. 533. -- demanded. In Biman Chandra v. Promotho Nath(1) it was said,. following the decision in Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff, 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 A.C. 563) 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." He then cited the decision of the Privy Council in Gurudas Pyne v. Ram Narain Sahu(1) where Article 120 was applied to a claim ,against a person in a fiduciary position as supporting his views. A similar view was adopted by Chagla, C. J. in Lingangouda v. Lingangouda(2) where the learned judge preferred to follow Anantram's(3) case in preference to Mahomed Wahib's(4) case. In the case before him he held that the claim of the plaintiff was an equitable claim and not a contractual claim thus attracting not Article 62 but the residuary Article 120. One of the main reasons why Chagla, C. J. held that Article 62 should not apply to a case where the terms of the section were not literally complied with was that such a construction would result in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 of 1873 and 1875, there was a number of forms of pleading known as the common indebitatus counts, such as counts for 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, & co......... The most com- prehensive 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 claim which was applicable when the plaintiff's money had been wrongfully obtained by the defendant." A similar view was taken of claims of a like nature in Municipal Council Dindigul v. The Bombay Co. Ltd., Madras(2), India Sugar and Refinery Ltd. v. The Municipal Council Hospet(2), State of Madras v. A.M.N.A. Abdul Kader(4), and The Municipal Committee, Amritsar v. Amar Dass(5). Learned Counsel submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Article 120. It is clear that at the time when the assessee made the deposit of the tax he was not entitled to the refund. That right accrued to him only after the completion of the assessment. We consider, therefore, that this decision does not assist the appellant in the construction which he seeks to persuade us to adopt of Article 62. If Article 62 were the proper Article of limitation applicable Civil Appeal 644 of 1962 has to be dismissed as the suit was filed (1) I.L.R. 43 Mad. 521 (2) 12 S.T.C. 825. admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal 306 of 1962. The claim in that suit included the amounts collected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948 i.e., for all the three surcharges. It is common ground that if the three years' period of limitation under Article 62 was applied the claim for the refund of the surcharge imposed in July, 1947 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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