Decided on December 12,1955



- (1.) PLAINTIFF is the appellant. The suit is for recovery of excess amount realised by the defendant from the plaintiff by way of freight. The plaintiff is the Travancore Sreemoolam Handloom Weavers' Central co-operative Society Limited having its registered office in Trivandrum. The defendant was the holder of a licence for the import of yarn to Travancore. The licence was issued under the Travancore Yarn Dealers' Control Order. The allegations in the plaint are the following:- The plaintiff - Society was engaged in supplying yarn, directly and through primary co-operative Societies, to weavers in Travancore as per licence issued by the Travancore Textile commissioner. The defendant was an importer of yarn and obtained licence for the purpose. Both the plaintiff and the defendant were bound to obey the orders issued by the Textile Commissioner under the provisions of the Yarn Dealers' control Order. As per permits issued by the Textile Commissioner, the plaintiff purchased 710 bales of yarn from the defendant during the period between 18. 1. 1121 and 6. 12. 1121. Since the plaintiff was bound to purchase yarn from the defendant before the expiry of ten days from the date of issue of the permit the plaintiff was forced to pay the price demanded by the defendant. The defendant demanded excess amounts by way of freight. The plaintiff paid these amounts under protest and afterwards complained to the Textile Commissioner about the illegal exaction. The Commissioner enquired into the matter and found that the plaintiff was entitled to get refund of Rs. 3,550 from the defendant. The order of the Commissioner is dated 18. 11. 1122. The appeal filed by the defendant to the Government from this order was also dismissed. The plaintiff then requested the Government to appropriate this amount from out of the security money deposited by the defendant. But, since no security deposit was outstanding with the Government, the plaintiff was directed to take appropriate legal steps to realise the amount from the defendant. PLAINTIFF accordingly field this suit for recovery of Rs. 3,550 and interest at 6 per cent per annum from 18. 11. 1122, the date of the order of the Textile Commissioner.
(2.) THE defendant raised the following contentions in his written statement: THE sale of yarn to the plaintiff was made in accordance with the terms of the licence granted to the defendant by the Government and in conformity with the provisions of the Yarn Control Order. THE defendant has not over-charged the plaintiff to any extent. THE price demanded by the defendant was the price which he was legally entitled to claim. THE plaintiff was not compelled to purchase yarn from the defendant. THE price paid by the plaintiff was paid voluntarily and there was no protest by the plaintiff at any time. It was only on 24. 4. 1946 that the plaintiff put forward the case that excess amounts have been realised by the defendant. THE defendant had incurred extra expenses for transporting yarn to his godowns at Vadassery. Even after raising the objection regarding the price of yarn in the letter dated 24. 4. 1946 the plaintiff purchased from the defendant about 300 bales of yarn without any protest regarding the price. THE plaintiff is not entitled to claim refund of any amount. THE order of the Textile Commissioner did not impose any obligation on the defendant to pay to the plaintiff the amount mentioned in the order. THE plaintiff has no cause of action against the defendant, and the suit is not maintainable. Thirteen issues were raised in the case. Of these all except issues Nos. 6 and 7 were decided in favour of the plaintiff. Issue No. 6 raises the question whether the plaintiff has a right to sue and issue No. 7 is whether the plaintiff has got a cause of action. In deciding those issues the court below held that the suit is barred by limitation and consequently dismissed the suit, but without costs. The only question for decision so far as the appeal is concerned is whether the suit is barred by limitation. The Respondent has filed a memorandum of objections objecting to the findings of the court below which are against him. If the suit is found to be barred by limitation it will not be necessary to consider those objections. We shall, therefore, go into the question whether the suit is barred by limitation.
(3.) ACCORDING to the court below Art. 50 of the Travancore limitation Act, corresponding to Art. 62 of the Indian Limitation Act, applies to the case. That Article reads: Table:#1 The last payment was made by the plaintiff on 6. 12. 1121. The suit was instituted on 28. 4. 1125, i. e. , more than three years after that date. Therefore, if Art. 62 of the Indian Limitation Act applies to the case the suit is clearly barred by limitation. The allegation in the plaint is that the cause of action arose on 18. 11. 1122, the date of the order of the Textile Commissioner (Ext. A) holding that the defendant was liable to refund to the plaintiff Rs. 3,550 realised by the defendant by way of excess freight. Ext. A is only a letter written by the Textile Commissioner to the defendant requesting the defendant to refund to the plaintiff Rs. 3,550 which, according to the commissioner, was excess amount realised by the defendant for the sale of 710 bales of yarn to the plaintiff. The Textile Commissioner had no authority under the Yarn Control Order to adjudicate upon any dispute between the wholesale dealer and a permit-holder and to pass an award. Ext. A has not, therefore, the effect of an award. It is true that, if the defendant refused to comply with the direction of the Commissioner the latter could cancel the licence granted to him or take any other appropriate action which he was authorised to take under the Control Order. But, that does not mean that the plaintiff has got a cause of action against the defendant on the basis of the direction of the textile Commissioner. We are, therefore, unable to accept the contention that the plaintiff's cause of action arose on the date of Ext. A.;

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