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1972 (5) TMI 22

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..... 1,89,364.62. The assessee did not prefer a revision and the appellate order became final. During the pendency of the appeal the defendant had obtained an order of stay from the appellate court staying the realisation of three fourth of the assessed tax. The defendant filed a writ petition (No.77 of 1953) in the High Court and on 21st January, 1953, obtained a stay order in regard to the recovery of the tax. The writ petition was dismissed on 19th April, 1954, as not pressed. The plaintiff, State, was, however, informed of the dismissal of the writ petition by the standing counsel on 18th March, 1958. It was alleged that the defendant had not paid the tax in spite of the demand and that in addition to the arrears of tax of Rs. 1,89,364.62 the plaintiff was further entitled to Rs. 1,13,618 as interest by way of damages at twelve per cent. per annum with effect from 25th November, 1953, till the date of the suit. The cause of action was alleged to have arisen on 25th November, 1953 (the date when the appeal was decided) and on 19th April, 1954, when the writ petition was dismissed. In defence it was pleaded that the appellate order, while reducing the original amount of tax to Rs. ....

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.... This application was rejected by the trial court on the ground that it was highly belated. The appellant reiterated his application for amendment during the hearing of the appeal. After hearing the parties, we by an order dated December 6, 1971, allowed the appellant to amend the written statement in the manner set out in his application No. 87-A. We also allowed the plaintiff, State, to file a replication, if any. The defendant by an amendment introduced the following clause at the end of paragraph 17 of the written statement : " It may further be made clear that the said appellate order dated November 25, 1953, was never communicated to the defendant as contemplated by section 21(6) and section 23 of th U.P. Agricultural Income-tax Act. " The plaintiff thereupon filed a replication stating that the arguments in the appeal were heard on 25th November, 1953, and after the conclusion of the hearing the Agricultural Income-tax Commissioner dictated the judgment on the same date. It was also pleaded that the defendant had otherwise also knowledge of the judgment passed in the appeal and had obtained a copy of the same which was filed in Writ Petition No. 1072 of ,1958. On the addi....

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....nt was received by him from the office of the Agricultural Income-tax Commissioner. He admitted in cross-examination that he had filed Writ Petition No. 1072 of 1958 in the High Court on behalf of the defendant and a copy of the appellate judgment was also annexed with the writ petition. It was a plain copy which was copied from a certified copy obtained on March 1, 1958, for defending the present suit. The learned standing counsel stated that the despatch registers of the Commissioner's Office having been weeded out could not be produced. From the order sheet it appears that the appellate order was pronounced in open court on the day fixed for the hearing of the appeal. Even though the defendant's witness states that the counsel appearing for the defendant as well as the Pairokar left the court room after the hearing was over, since the order was dictated that very day in court, the defendant's knowledge of it must be presumed. This knowledge is further corroborated by the fact that in the writ petition filed by the defendant in 1958 a copy of this order was annexed. The writ petition was filed on 1st April, 19 after receipt of the notice of demand on 28th March, 1958. Till 28th....

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.... communication, of an order was necessary before it can be an operative and binding order. In that case the order of dismissal was passed on 3rd June, 1949. Being ignorant of this order the officer made representations. On 28th May, 1951, the officer was informed that the record of the office showed that he had been dismissed from Government service with effect from the date of his suspension. It was on this date that the respondent came to know about his dismissal. Even on this date a copy of the order was not furnished to the officer. The Supreme Court held that the order of dismissal took effect from 28th May, 1951, because that was the date on which the order would be deemed to have been communicated to him. This decision seems to suggest that the essence of communication is the fact that the person concerned has come to know of the order. In the present case the assessee obtained a certified copy of the order on 1st March, 1958. The order can in any event be said to have been communicated to the assessee on this date. The present suit was filed much later. It cannot, hence, be said that the suit was premature or that no cause of action had arisen on the date when it was instit....

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....t of tax is reduced to Rs. 1,89,364-10-0 only which must be paid in four equal instalments to be fixed in the fresh notice of demand after making, necessary adjustments for the payments already made . . . . " After the appellate order the State served upon the appellant a notice on 28th March, 1958. That notice was quashed in a writ petition. It is admitted that no other notice of demand was served upon the appellant. During the hearing of the appeal the learned standing counsel prayed for an adjournment in order to institute a writ petition to challenge the validity of the direction In the operative part of the appellate order requiring a fresh notice of demand and requiring payment in four equal instalments. We adjourned the hearing on payment of Rs. 500 as costs to the appellant. The respondent, State, has filed the connected writ petition (No. 459 of 1971). It is prayed that this part of the appellate order be quashed. Section 30(1) of the Act initially provided that the amount specified in any notice of demand under section 20 or in any order communicated under section 23 shall be payable in four equal instalments. Sub-section (2) of section 20 provided that the first insta....

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....ds to the same conclusion. The memorandum of appeal also shows that no such plea was included in any of the grounds of appeal. Ground No. 2 stated that there being no valid notice of demand, there was no liability on the defendant-appellant to the impugned tax. But, this means no reference to a notice of demand as contemplated by the appellate order. Under the circumstances, we are inclined to believe the case of the respondent, State, that it was unaware of the implications and the illegality of the impugned clause in the operative portion of the appellate order. The writ petition was immediately instituted after the point came to light. It is well-settled that, if a litigant approaches this court under article 226 of the Constitution with an explanation that till a particular point of time he was unaware of his rights or had a mistaken notion of a particular position in law, the writ petition should not be thrown out merely on the ground of delay because, if such a plea is established, it proves that the litigant was not guilty of laches'. We are not satisfied that this is a fit case in which the writ petition should be thrown out on the ground of delay. We shall accept it and qu....

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....creditor, has all the remedies available to a creditor. The institution of a suit for recovery of a debt is provided for by section 9, Civil Procedure Code. That section does not exclude a suit at the instance of the State Government. There is no provision in the Act which expressly or by necessary implication takes away the right of the State Government to recover its tax demand by way of a civil suit. The Municipalities Act provides a detailed procedure, for recovery of refund of excess octroi paid to the municipality. It was urged that those detailed provisions indicated that the procedure laid down therein was the only way by which a person could recover the refund due to him. The Supreme Court in S. Kirpal Singh Dggal v. Municipal Board, Ghaziabad repelled the submission and held that the claim for refund was a civil right and was justiciable by the civil court and the civil court's jurisdiction to entertain such a claim was not barred by the provisions of the Municipalities Act. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemption do not purport to bar the jurisdiction of the civil court if the procedure is not followe....

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....eged to be more stringent than the normal way of recovering money by a suit, because the special procedure was quick and provided for recovery as an arrear of land revenue under which the person liable to pay could be subjected to arrest as well. In all those cases it was held that the State had been conferred a right to recover its dues by adopting the special procedure provided in the statute in addition to the general right it has of recovering its dues by a suit. Since there was no express bar to the institution of a suit to recover the money, the court held that that right remained with the State. The special procedure provided by the Acts was considered to be more stringent and since it was found that the choice to adopt the special procedure or to take recourse to the civil courts had been left to the whim of the concerned official, the special procedure was violative of article 14 of the Constitution as involving an invidious discrimination. In all these cases the provisions of the Act were struck down. In no case was section 9, Civil Procedure Code, held as violative of article 14 of the Constitution. It was urged that for proceedings under the Act a limitation of one yea....

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....ji Ramji it was observed that in order to invoke a rule of equity it is necessary in the first instance to establish the existence of a set of circumstances which attract the equitable jurisdiction. This decision of the judicial Committee has been referred to with approval in several decisions of the Supreme Court. In Thawardas Pherumal v. Union of India 2 the claim for interest for breach of contract was negatives because such a claim was not such in which the courts of equity will have any jurisdiction to allow interest. In A. L. Rallia Ram's case the claim was for compensation for certain supplies made. The claim for interest was negatived. Similarly, in Union of India v. Watkins Mayor and Co. the claim for interest was disallowed in a suit for compensation. In Vithal Dass v. Rungta Chand a claim for interest was disallowed in a suit for dissolution of partnership and accounts. It was held that the partner in possession of the properties cannot be treated as constructive trustee merely because of collection of rent. It was observed that, in the absence of any advantage gained against the interest of a co-owner, he could not be made liable under section 23, Trusts Act. On beha....