TMI Blog1979 (3) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... tilizers Control Order, 1957 were referred and it was represented that phosphoric content of fertilizers when stored in bags tended to "cake up", "lump up" and "hardened" the fertilizers, therefore, their stocks were not filled in bags. The manufacturers particularly in the year 1969 experienced "glut" in their sales for the Government of India imported massive stocks of fertilizers in that year. Like other manufacturers the company found scarcity of space due to the recession The fertilizers, if stocked in bags, the company urged, the bags at the bottom in the warehouses "hardened" and that in turn, required cakes to be broken; bags to be restricted before they were offered to the consumer. Such a process added enormously to their cost of production and the company impelled by the expense involved and experience they had, did not fill the bags. There were similar disputes by other manufacturers raised all over the country. The Association of Fertilizer Manufacturers made representations to the Excise authorities that the stocks of fertilizers available by the close of the day on February 28, 1969 were not liable to duty and fertilisers manufactured from March 1, 1969 alone were co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussion, Rule 11 of the rules is held to have no application on the facts of the case. 4. The learned Counsel for the respondent cited a judgment of this court in W.P. No. 3710 of 1977 dated March 17,1978 to show that Rule 11 has application. In that writ petition, Chinnappa Reddi, J. considered the scope of Rule 11 and observed: "It is not permissible for me to re-write the rule" and found on facts that Rule 11 was attracted and the claim made by Shri Ganesh Sugars on that basis was dismissed. The judgment shows on facts in the writ petition that Rule 11 was "held" applicable and the claim made by Ganesh Sugars was beyond three months. The facts in the instant case do not warrant the application of Rule 11. The contention that the claim is barred under Rule 11 therefore fails 5. Next it is urged on behalf of the company that the claim amount was paid under "mistake" within the meaning of Section 72 of the Indian Contract Act and the mistake came to be dispelled on March 11, 1976 when the Madras High Court decided the dispute within six weeks. Therefore on April 28, 1977 the claim was made by the company but the Excise Collector rejected the claim on July 15, 1977 and this writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervener (3) AIR 1968 S C 445 on September 29, 1967 and soon after the decision of the Supreme Court, the assessee firm claimed refund of tax paid as mistaken payments by them. The contentions of the assessee earlier in the course of assessments touching the validity and non-liability of the firm were rejected by the Tax authorities. The firm contended the mistake in payment to the Sales Tax authorities was realised by the assessee only after the judgment in Kantilal Babulal Bros. v. H.C. Patel and others, respondents, The new Shorrock Spg. and Mfg. Ltd. Intervener (5) AIR 1968 S.C. 445 on September 29, 1977 and soon thereafter the claim was made by them and reliance was placed on the ratio of decision in The Sales Tax Officer, Banaras and Others v. Kanhaiya Lal Mukund Lal Saraf and Others (3). The learned single Judge and the Division Bench of the Bombay High Court on appeal on facts in their "discretion" rejected the writ petition. Before the Supreme Court on appeal, Mitter, J. on the facts of the case held the assessee "coerced" to make the payment but the case was not that of "mistake" under Section 72 of Contract Act and in para 50 observed:- "I can however find no merit in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as) observed on the facts of the case at para 27 as under : "In my opinion the petitioner was under a mistake of law, when he paid up, the mistake being that he thought that Section 12-A (4) was a valid provision in spite of its imposing unreasonable restrictions........." Hegde, J. observed : "The provision of the Limitation Act have no relevance either directly or indirectly to proceedings under Article 32," "...I see no justification to reject the plea of the petitioners that they became aware of the provision only after the decision of the Court in Kantilal Babulal's case, 21 S.T.C. 174 [(AIR) 1968 S.C. 445 (supra)] which decision was rendered on September 29, 1967. The petition was filed very soon thereafter. Hence this case under any circumstance falls within the rule laid down by this court in Bhailal Bhai's case, 1964-6 S C.R. 261 (supra)." The views expressed by five judges would show : Bagawati and Mitter, JJ construed the facts to fall within the meaning of "coercion" under Section 72 of the Contract Act. The suit ought to have been filed "within three years from 1-1-1964" the date on which the Limitation Act came into force and the claim was barred under the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the judgments of the Bombay High Court in City Municipality, Bhusawal v. Nusservanji Hormusji Madon and others (7) AIR 1940 Bombay 252 and a Division Bench of this Court in A. Santhana v. The State of Madras (New Andhra Pradesh) represented by District Collector, Kurnool (8) 1957 (II) An W.R. 260, another decision of the Supreme Court reported in State of Madhya Pradesh, appellant in all the appeals v. Bhailal Bhai and others (9) AIR 1964, SC 1006, wherein a batch of writ petitions under Articles 304 and 301 of the Constitution were considered from the standpoint of Article 62 (repealed) Limitation Act. The learned Counsel for the respondent emphasised that in the instant case, it is 8 years after the payment refund is claimed and the claim, it is emphasised, is barred hopelessly under the Limitation Act, 1963. 12. The above arguments on facts of the case raise two questions: (1) If the issue is to be considered from the standpoint of the provision to be applied under the Limitation Act that question depends on the question whether it was a "mistake" or "coercion" under Section 72 of the Contract Act when amounts were paid: (2) The claim if not even is barred under Li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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