TMI Blog1929 (12) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... alent at the time. The transaction took place on the 5th March, 1922. Subsequently the Government of India reduced the excise duty on salt from ₹ 5 to 2-8-0 per bag. It was to have effect from a date prior to the 5th March, 1922. The defendants' firm accordingly obtained refund from the Government of ₹ 1,000 representing the difference in the excise duty at the rate of ₹ 2-8-0 per bag in respect of the 400 bags. This amount was received by the firm of the defendants on 1st April, 1922. The plaintiff instituted the original suit in the Court of the District Munsif of Tinnevelly claiming the sum of ₹ 1,000 which the defendants got from the Government, with interest thereon. The plaintiff also alleged in the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the defendants must be taken to have purchased the salt from the Government as agent of the plaintiff and in that view also the defendants were bound to refund to the plaintiff the sum of ₹ 1,000 which they got from the Government. This second appeal has been preferred by the 4th defendant, and on his behalf his learned Advocate raised two contentions before us. The first was that the Lower Appellate Court was in error in having allowed the plaintiff to set up a new case of agency, whereas in the plaint the case set up was one of sale. The learned Advocate drew our attention to the plaint where there are no allegations regarding any agency and also to the circumstance that no issue had been raised with reference to this question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy in the Indian Act from that of English Act. The learned Advocate for the appellant then argued that the test to be applied is whether the transaction between the parties had been, as he said, closed or not. Here again the wordings of the section do not in our view lend support to this contention. As we read Clause (a) of Section 10, that gives to the seller, in cases where the duty had been enhanced after sale, the right to recover such additional duty from the purchaser. This clearly, in our opinion, contemplates a case where the accounts between the parties had been settled and the purchaser had paid the seller the whole of the price agreed between the parties. If with reference to Clause (a) a seller is entitled under this Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay a particular amount, it would follow that, if he had in fact paid the same, the general law would allow him to recover back what he has paid but was not bound to pay. We think that no sufficient grounds have been shown why the section should be construed in favour of the seller in one way, but against the purchaser in another way. We think that, reading Clauses (a) and (b), it is reasonably clear that the intention of the Legislature was to revise the terms of the contract between the parties so as to give to the one or to the other the benefit of the increase or the decrease of duty in such cases. 3. With reference to the decisions that were quoted before us we may at once say that no direct case in which the question that has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. In any event we feel ourselves bound to construe Section 10 of the Indian Act according to its wordings; and for the reasons we have mentioned we feel ourselves unable to accept the contention raised by the learned Advocate for the appellant on this point. On the question of delivery being the test, there is one other point which would be against the view suggested by the learned Advocate: for the appellant. It is not uncommon that according to mercantile contracts deliveries are stipulated for and in fact made, long before the time when price is to be paid. In cases, therefore, where delivery is made earlier and the price is agreed to be paid later, say, a month after the date of delivery, under Section 10 (a) of the Act the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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