MAHABIR KISHORE & ORS. v. STATE OF MADHYA PRADESH

The Judgment of the Court was delivered by G SAIKIA, J. This plaintiffs' appeal by special leave is from the -:f appellate Judgment of the Madhya Pradesh High Court dismissing the appeal upholding the Judgment of the trial court dismissing the plaintiffs' suit on the ground of limitation.

H A registered firm Rai Saheb Nandkishore Rai Saheb Jugalki·

MAHABIR KISHORE v. STA TE OF M.P. [SAIKIA, J.] S99

•-<\ shore (Appellants) was alloltf<d contracts for manufacture and sale o°f A liquor for the calendar year 1959 and for the subsequent period from 1.1.1960 to 31.3.1961 for Rs.2,56,200.00 and Rs.4,71,900.00, respec- tively, by the Government of Madhya Pradesh who also charged 7-1/2 per cent over the auction money as mahua and fuel cess. As writ petitions challenging the Government's right to charge .this 7-1/2 per cent were pending in the Madhya Pradesh High Court, the Govern- B ment announced that it would continue to charge it and the question of stopping it was under consideration of the Government whose decision would be binding on the contractors. The firm (appellants) thus paid . for the above contracts a total extra sum of Rs.54,606.00. -..i.r ' On 17.10.1961 the Under Secretary to Government, M.P., C Forest Department, Bhopal wrote the following letter No. 10130-X/6 l (Exhibit D-23) to the Chief Conservator of Forests, Madhya Pradesh, Rewa:

"Subject: Levy of cess on liquor contractors. Under former M.P. Government (Forest Department) memo No. D 4595-CR-73-XI dated 25th July, 1953, a royalty at 7-1/2 ·per cent of the license fee for liquor shops was imposed on liquor contractors to cover the value of mahua & fuel extracted from the reserved or protected forests by the contractors for their still. E

2Copy pinpoint2. The M.P. High Court has since decided that the. levy of the aforesaid cess is illegal and the cess cannot be recovered from the liquor contractors. In pursuance of this decision, Government desires that all processes whenever

.·~ issued or proceedings instituted against liquor contractors for recovery of the mahua or fuel cess should forthwith be F withdrawn and no revenue recovery certificates should be issued in respect of this cess.

3Copy pinpoint3. Simultaneously no free supply of mahua or fuel should be permitted by virtue of the imposition mentioned above. G

Immediate compliance is requested.

No ..... X/61 Dt. Bhopal the ..... 661

·Copy forwarded for immediate compliance to: H

600 SUPREME COURT REPORTS I 1989] 3 S.C. R.

A I. -Conservator of For~sts, Bilaspur.

2. All Divisional Forest Officers, Bilaspur Circle.

3. Copy to C.F. Raipur Circle for similar auction in this cess levied in any division of his Circle." y' B On 24.4. 1959 the Madhya Pradesh High Court's Judgment in Surajdin v. State of M. P., declaring the collection of 7-1/2 per cent illegal was reported in 1960 MPU-39. Even after this decision Government continued to charge 7-1/2 per cent extra money. Againy on 31.8.1961 the High Court of Madhya Pradesh in N.K. Doongaji v. Collector, Surguja, decided that the charging of 7-1/2 per cent by the c Government above the auction money was illegal. This Judgment was ~ reported in 1962 MPU- 130. It is the appellants' case that they came to know about this decision only in or about September 1962. On 17.10.1964 they served a notice on Government of Madhya Pradesh under s. 80 of the Code of Civil Procedure requesting the refund of D Rs.54,606.00, failing which, a suit for recovery would be filed; and later they instituted Civil Suit No. 1-B of 1964 in the court of Addi- tional District Judge, Jabalpur on 24.12. 1964. The Government resisted the suit on, inter alia, ground of limitation. The trial court J •· taking the view that Articles 62 and 96 of the First Schedule to the ""- Limitation Act, 1908 were applicable and the period of limitation began to run from the dates the payments were made to the Govern- ment, held the suit to be barred by limitation and dismissed it. In appeal, the High Court took the view that Article 113 read with s. 17, and not Article 24, of the Schedule to the Limitation Act 1963, was applicable; and held that the limitation began to run from 17.10.1961 - \ on which date the Government decided not to charge extra 7-1/2 per cent on the auction money, and as such, the suit was barred on

17. 12. 1964 taking into consideration the period of two months pre- scribed by s. 80 of the Code of Civil Procedure. Consequently. the appeal was dismissed. The appellants' petition for leave to appeal to this Court was also rejected observing, "it was unfortunate that the petitioners filed their suit on 24.12. 1964 and as such the suit was bar- G red by time by seven days."

Mr. \.1.V. Goswami, learned counsel for the appe1lants, submits, inter alia, that the High Court erred in holding that the limitation started running from 17.10.1961 being the date of the letter, Exhibit D-23, which was not communicated to the appellants or any other H contractor and therefore the appellants had no opportunity to know

~ MAHABIR KISHORE v. STATE OF M.P. (SAIKIA, J.] 601 ~ about it on that very date with reasonable diligence under s. 17 and the A High Court ought to allow atleast a week for knowledge of it by the appellants in which case the suit would be within time. Counsel further submits that the High Court while rightly discussing that s. 17 of the Limitation Act, 1963 was applicable, erred in not applying that section to the facts of the instant case, wherefore, the impugned Judgment is liable to be set aside. B

Mr. Ujjwal A. Rana, the learned counsel for the respondent, submits, inter a/ia, that 17.10.1961 having been the date on which the

*' ~ Government finally decided not to recover extra 7-1/2 per cent above the auction money, the High Court rightly held that the limitation started from that date and the suit was clearly barred under Article 24 c or 113 of the Schedule to the Limitation Act, 1963; and that though the records did not show that the Government decision was communicated to the appellants, there was no reason why they, with reasonable dili- gence, could not have known about it on the same date.

The only question to be decided, therefore, is whether the deci- D sion of the High Court is correct. To decide that question it was neces- sary to know what was the suit for. There is no dispute that 7-1/2 per cent above the auction money was charged by the Government of Madhya Pradesh as mahua and fuel cess, and the High Court subse- quently held that it had no power to do so. In view of those writ petitions challenging that power, Government asked the contractors to continue to pay the same pending Government's decision on the ques- tion; and the appellants accordingly paid. Ultimately on 17.10.1961 Government decided not to recover the extra amount any more but did not yet decide the fate of the amounts already realised. There is no M denial that the liquor contracts were perforrned by the appellants. There is no escape from the conclusion that the extra 7-1/2 per cent was charged by the Government believing that it had power, but the High Court in two cases held that the power was not there. The money realised was under a mistake and without authority of law. The appel- lants also while paying suffered from the same mistake. There is there- fore no doubt that the suit was for refund of money paid under mistake of law. G ~ <"

The question is what was the law applicable to the case. 'Nu/ ne doit senrichir aux depens des autres'-No one ought to enrich himself at the expense of others. This doctrine at one stage of English common law was ·remedied by 'indebitatus assumpsit' which action lay for money "had and received to the use of the plaintiff''. It lay to recover H

602 SUPREME COURT REPORTS [1989\ 3 S.C R.

A money paid under a mistake, or extorted from the plaintiff by duress of his goods, or paid to the defendant on a cosideration which totally failed. On abolition of 'indebitatus assumpsit', courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious. Lord Mansfied in Mos'l!s v. Macferlan, 11760] 2 Burr. 1005 at JO 12 explained the juridical basis of the action for money "had and B received" thus:

"This kind of equitable action, to recover back money, which ought not in justice to be kept, is very, beneficial, arid therefore much encouraged. It lies 'only for money which, !! 'ex aequo et bona', the defendant ought to refund; it does c not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as-in payment of a debt barred by the Statute of Limi- tations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive \ law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which hap- pens to fail; or for money got through imposition, (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiffs situation, contrary to laws made for the protection of persons under those circums- tances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." F In that case Moses received from Jacob four promissory notes of 30sh. each. He endorsed these to Macferlan who, by a written agree- ment, contracted that he would not hold Moses liable on the endorse- ment. Subsequently, however, Macferlan sued Moses on the notes in a Court of Conscience. The Court refused'to recognise the agreement, and Moses was forced to pay. Moses then brought an action against --Y Macferlan in the king's Bench for money "had and received" to his use. Lord Mansfieq allowed him to recover observing as above.

Courts in England have since been trying to formulate a juridi- cial basis of this obligation. Idealistic formulations as 'aequum et bonum' and 'natural justice' were considered to be inadequate and the

MAHABIR KISHORE v. STATE o·F M.P. (SAIKIA, J.] 603

more legalistic basis of unjust enrichment is formulated. The doctrine A .of 'unjust enrichment' is that in certain situation it would be 'unjust' to allow the defendant to retain a benefit at the plaintiff's expense. The ·-~ relatively modern principle of Restitution is of the· nature of quasi contract. But the English Jaw has not yet recognised any generalised ·./ right to restitution in every case of unjust enrichment. As Lord Diplock has said, "there is no general doctrine of "unjust enrichment" B recognised in English law. What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system i.e. based upon the civil law." In Sinclair v. Brougham, j,,(1:914] AC 398 Lord Haldane said that law could 'de jure' impute ' promises to repay whether for money "had and received" otherwise, ) ' which may, if made de facto, it would inexorably avoid. C

The principle of unjust enrichment requires: first, that the deferidant has been 'enriched' by the receipt of a "benefit"; secondly, that this enrichment is "at the expense of the plaintiff"; and thirdly, that the retention of the enrichment be unjust. This justifies restitu- tion. Enrichment may take the form of direct advantage to the reci- D pient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.

Another analysis of the obligation is of quasi contract. It was said; "if the defendant be under an obligation from the ties. of natural justice, to refund; the Jaw implies a debt, and give this action fqunded E in the equity of the plaintiff's case, as it were, upon a contract (quasi ex contractu) as the Roman Jaw expresses it." As Lord Wright in Fibrosa Spolka v. Fairbairn Lawson, [1943] AC 32-1942 2 All RR. 122 pointed out, "the obligation is as efficacious as if it were upon a con- tract. Such remedies are quasi contract or restitution and theory of unjust enrichment has not been dosed in English Jaw." f-

Section 72 of the Indian Contract Act deals with liability of person to whom money is paid or thing delivered, by mistake or under coercion. It says:

"A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."

Illustration (b) to the section is:

"A Railway Company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal

604 SUPREME COURT REPORTS [1989] 3 S.C.R. r A charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive."

Our law having been codified, we have to apply the law. It is \.- true, as Pollock wrote in 1905 in the preface to the first Edition of B Pollock and Mulla's Indian <:;ontract and Specific Relief Acts:

"The Indian Contract Act is in effect ....... a code of English law. Like all codes based on an existing authori~ live doctrine, it assumes a certain knowledge of the princi-' ' pies and habits of thought which are embodied in that c doctrine." ~

It is, therefore, helpful to know "those fundamental notions in the common law which are concisely declared, with or, without modifi- cation by the text."

\f D There is no doubt that the in.slant suit is for refund of money paid ;;. i~ by mistake and refusal to refund may result in unjust enrichment !'I depending on the facts and circumstances of the case. It may be said :r. \!; that this court has referred to unjust enrichment in cases under s. 72 of l._ ~~ the Contract Act. See AIR 1980 SC 1037; AIR 1985 SC 883 and AIR 1985 SC 901. E The next question is whether, and if so, which provision of the ~

Limitation Act will apply to such a suit. On this question we find two lines of decisions of this Court, one in respect of civil suits and the 1 '"ii, other in respect of petitii>ns under Article 226 of the Constitution of )I"-, India. Though there is no constitutionally provided period of limita- ;;;; F tion for petitions under Article 226, the limitation prescribed for such suits has been accepted as the guideline, though little more latitude is i rt available in the former.

n A tax paid under mistake of law is refundable under s. 72 of the Indian Contract Act, 1872. In Sales Tax Officer v. Kanhaiya Lal, G [ 1959] SCR 1350 where the respondent, a registered firm, paid sales -j tax in respect of the forward transactions in pursuance of the assess- ment orders passed by the Sales Tax Officer for the year 1949-51; in 1952 the Allahabad High Court held in Mis Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur, [1952] AU 332 that the levy of sales tax .; /on forward transactions was ultra vires. The. respondent asked for a H refund of the amounts paid, filing a writ petition under Ariticle 226 of

p. 605 Copy page pinpoint

~ the Constitution. It was contended for the Sales Tax Authorities that A 1 the respondent was not entitled to a refund because (1) the amounts in dispute were paid by the respondent under a mistake of law and were, therefore, irrecoverable, (2) the payments were in discharge o(the liability under the Sales Tax Act and were voluntary payments without protest, and (3) inasmuch as the monies which had been received by the Government had not been retained but had been spent away by it B and the respondent was disentitled to recover the said amounts. This Court held that the term "mistake" ins. 72 of the Indian Contract Act comprised within its.scope.a mistake of law as well as a mistake of fact and that, under that section a party is e.ntitled to recover money paid .~Y mistake or under coercion, and if it is established that the payment, ·even though it be of a tax, bas been made by the party labouring under C a mistake of law, the party receiving the money is bound to repay or .,.._ return it though it might have been paid voluntarily, subject, however, to questions of estoppel, waiver, limitation or the like. On the ques- tion of limitation, it was held thats. 17(1)(c) of the Limitation Act, 1%3 would be applicable and that .where a suit will be to recover "monies paid under a mistake of law, a writ petition within the period of limitation prescribed, i.e., within 3 years' of the knowledge of the mistake, would also lie." It was also accepted that the period of limita- tion does not begin to run until the plaintiff has discovered the mistake or could, with reasonable diligence, have discovered it. 1 The money may not be recoverable if in paying and receiving it the parties were in pari delicto. In Kiriri Cotton Co. Ltd. v. Ranchhod- das Keshavji Dewani, (1960] AC 192, where the appellant company, in consideration of granting to the respondent a sub-lease asked for and received from him a premium of Sh. 10,000 and the latter. claimed· . refund thereof, the Privy Council held that the duty of observing ihe ,~ law was firmly placed by the Ordinance on the shoulders of d!e land- F l<>rd for the protection of the tenant, and the appellant company and the respondent were not therefore .in pari delicto in receiving and paying respectively the illegal premium, which, therefore, in accilr- dance with established common law principles, the respondent was entitled to recover from the landlord and that the omission of a statu- tory remedy did not in cases of this kind exclude the remedy by money G had and received. In the instant case also the parties could not be said ~- to be in pari delicto in paying and receiving the extra 7-1/2% per cent. Had the appellants not paid this amount, they would not have been given the contracts.

In D. Cawasji & Co. v. The State of Mysore & Anr., 11975] 2 H SCR 511, the appellants paid certain amount to the Governlnent as

p. 606 Copy page pinpoint

A excise duty and education cess for the years 1951-52 to 1965-66 in one ~··"' case and from 1951-52 to 1%1-62 in the other. The High Court struck,·-= down the provisions of the relevant Acts ~ unconstitutional. In Writ ;· Petitions before the High Court claiming refund, the appellants con- , te'nded that the payments in question were made by them under mis- take of law; that the mistake was discovered when the High Court B struck down the pmvisions as unconstitutional and the petitions were, therefore; in time but the High Court dismissed them on the ground of inordinate delay. Dismissing the appeals, this Court held that where a { suit would lie to recover monies paid under a mistake of law; a writ ~ petition for refund of tai within th& period of limitation would lie. For filing a wnt i>etition to recover the money paid under a mistake of law C the starting point of limitation is from the date on which the judgment · declaring as void the particular law under which the tax was paid was rendered. It was held in D. Cawasji (supra) that although s. 72 of the Contract Act has been held to cover cases of payment of money under a mistak~. of law, as the State stands in a peculiar position in respect ofk . taxes paid to it; there are perhaps practical reasons for the law accord- D ing different treatment both in the matter of the heads under which they could be recovered and the period oflimitation for recovery. P .N. Bhagwati, J., as he then was, in Madras Pon Trust v. Hymanshu International, [1979] 4 SCC 176, deprecated any resort to plea of limi- tation by public authority to defeat just claim of citizens observing that though permissible under law, such technical plea should only be E taken when claim is not well founded.

Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief of the ground of mistake, the period of limita- tion does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where , F payment has been made under a mistlike of law as contrasted with a '·.mistake of fact, generally the mistake become known to the party only when a court makes a declaration as to the invalidity of the law. y- ··-··Though a party could, with rea5onable diligence, discover a mistake of l . fact even before a court makes a pronouncement, it is seldom that a / person can, even with reasonable·'diligence, discover a mistake of law · G before a judgment adjudging the validity of the law.

· E.S. Venlr.ataramiah, J ., as his Lordship then was, in Shri Vallabh Glass Works Ltd. v: Union of India, (1984) 3 SCR 180, where+,.. the appellants claimed refund of excess duty paid under Central Excise and Salt Act, 1944, laid down that the excess amount paid by the H appellants would have become refundable by virtue of s. 72 of the

MAHABIR KlSHORE v. STATE OF M.P. {SA!KIA, J.I 607

Indian Contract Act if the appellants had filed a suit within the period A 1 of limitation; and thats. 17(l)(c) and Article 113 of the Limitation Act, 1963 would be applicable.

608 SUPREME COURT REPORTS I 1989] 3 S.C.R. (\ the illegality of the tax sought to be imposed as early as in 1963, when !'- ' the Act in question was declared ultra vires. Allowing the assessee's appeal, Mukharji, J. speaking for this Court held:

"In this case indisputably it appears that tax was collected without the authority of law. Indeed the appellant had to B pay the tax in view of the notices which were without jurisdiction. It appears that the assessment was made under section 9(3) of the Act. Therefore, it was without jurisdic- tion. In the premises it is manifest that the respondents had no authority to retain the money collected without the authority of law and as such the money was liable to ~' c refund."

The question there was whether in the application under Art. 226 of the Constitution, the Court should have refused refund on ground' of !aches and delay, the case of the appellant having been that it was after the Judgment in the case of Loong Soong tea Estate, the D cause of action arose. That judgment was passed in July, 1973. The High Court was, therefore, held to have been in error in refusing to order refund on the ground that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1973 when the Act in question was delcared ultra vires. The Court observed: E "Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statemenf of law it follows that taxes collected without the a authority of law as in this case from citizen should be F refunded because no State has the right to receive or to ~' retain taxes or monies realised from citizens without the authority of law."

On the question of limitation referring to Suganmal v. State of M.P., AIR 1965 SC 1740, and Tilokchand Motichand v. H.B. Munshi, G [ 1969) 2 SCR 824, his Lordship observed that the period of limitation prescribed for recocery of money paid by mistake started from the date when the mistake was known. In that case knowledge was attributable -'f from the date of the Judgment in Loong Soong Tea Estate's case on July 10, 1973. There had been statement that the appellant came to know of that matter in October, 1973 and there was no denial of the H averrnent made. On that ground, the High Court was held to be in

MAHABIR KISHORE '· STATE OF M.P. {SAIKIA, J.J 609

error. It was accordingly held that the writ petition filed by the appel- A Ian ts were within the period of limitation prescribed under Art. 113 of the Schedule read withs. 23 of the Limitation Act, 1963.

It is thus a settled law that in suit for refund of money paid by ~ mistake of law, s. 72 of the Contract Act is applicble and the period of limitation is three years as prescribed by Article 113 of the Schedule to B the Indian Limitation Act, 1963 and the provisions of s. 17(l)(c) of that Act will be applicable so that the period will begin to run from the date of knowledge of the particular law, whereunder the money was ~paid, 1 being declared void; and this court be the date of judgment of a competent court declaring that law void. c . In the instant case, though the Madhya Pradesh High Court in Surajdin v. 'stale of M.P., declared the collection on 7-1/2% per cent illegal and that decision was reported in 1960 MPLJ 39, the Govern- ment was still charging it saying that the matter was under considera- tion of the Government. The final decision of the Government as stated in the letter dated 17 .10. 1961 was purely an internal comm uni- D cation of the Government copy whereof was never communicated to the appellants or other liquor contractors. There could, therefore, be no question of the limitation starting from that date. Even with reason- able diligence, as envisaged ins. 17(1)(c) of the Limitation Act, the appellants would have taken at least week to know about it. Mr. Rana has fairly stated that there was nothing on record to show that the : E appellants knew about this letter on 17.10.1961 itself or within a reasonable time thereafter. We are inclined to allow at least a week to the appellants under the above provision. Again Mr. Rana has not been in a position to show that the statement of the appellants that they knew about the mistake only after the judgment in Doongaji's case reported in 1962 MPLJ 130, in or about September, 1962, whereafter F they issued the notice under s. 80 C.P.C. was untrue. This statement has not been shown to be false. In either of the above cases, namely, of knowledge one week after the letter dated 17.10.1961 or in or about September, 1962, the suit would be within the period of limitation under Article 113 of the Schedule to the Limitation Act, 1963. G • In the result, we set aside the Judgment of the High Court, allow the appeal and remand the suit. The records will be sent down (orth- with to the trial court to decide the suit on merit in accordance with law, expeditiously. The appellants shall be entitled to the costs of this appeal. H R.N.J. Appeal allowed.