- (1.) THIS is a plaintiff's revision application against an appellate decree of the Civil Judge Bundi in a suit for recovery of money brought against the State of Rajasthan.
(2.) THE plaintiff paid a sum of Rs. 531/4/6 as custom duty to the erstwhile State of Bundi during the years 1944-45, 1945-46 and 1946-47. For the same years he was assessed to income tax amounting to Rs. 277/6/- which he deposited on 1. 2. 48. He became entitled to a refund of Rs. 277/6/- as soon as he obtained a certificate from the Income Tax Officer Bundi State showing the amount of Income tax paid by him under the following notification: i "office of the Dewan Bundi State. NOTIFICATIOn No. 5013/m dated Bundi the 4th September, 1945 THE Darbar are pleased to order that on production from persons or firms carrying on business in the State a certificate of the Income Tax Officer Bundi State showing the amount of income tax paid they will draw the equivalent as a rebate from Customs Department subject to their having paid that amount in customs duty. If however, the customs duty is less than the amount of in come tax paid they will only draw the amount paid as customs duty. " Sd/- B. N. Ahalwaria For Dewan Bundi State. " THE present suit was instituted on 30. 11. 54 for the refund of the sum of Rs. 277/5/ -. THE lower appellate court dismissed the suit holding that Article 62 was applicable to the case. On behalf of the applicant it is contended that the suit is governed by Article 120. Reliance is placed on Muncipal Board, Ghazipur Vs. Deokinandan (1) in which it was held that a suit for the refund of octroi legally taken by a Municipality but wrongfully refused to be returned is governed by Article 120, Limitation Act and not by Art. 2 or Art. 62. It was observed: " THE decisions of their Lordship of the Privy Council in Gurudass Pyra V. Ram Narain Sahu (I. L. R. 10 Calcutta 890) and Hanuman Kamat V. Hanuman Mandur (I. L. R. 19 Calcutta 123) and other cases decided by Courts in India, seem to lay down that Art. 612 applies only when the money at the time of receipt can be said to have been received by the defendant for the plaintiffs use. According to respondent's allegations as we understand them, the sum in question cannot at the time of receipt be said to have been received by the Board for the respondent's use. " THE contention of the Deputy Government Advocate on the other hand was that Article 62 is applicable. Reliance was placed on Bhusawal Municipality Vs. Nusserwanji (2), India Sugars and Refineries Ltd. V. Hospet Municipal Council (3) and Roman Catholic Mission V. Sunder Singh (4 ). Article 62 runs as follows: Description of suit Period of limitation Time from which period begins to run. For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Three years. When the money is received The above article is taken from the well known form of action under the Law of England for money had and received. It covers a great variety of cases in which it can be said that the defendant has received money which really belongs to the plaintiff. Such an action lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, extortion, deceit or oppression, or for money improperly received and wrongfully detained. In other words it applies to cases where the defendant, at the time of the receipt in fact or by presumption or fiction of law, receives money for the plaintiff's use. This article has no application if the money when received by the defendant is not, either in fact or in point of law, received for the plaintiff's use and the circumstance that by reason of subsequent events the money has become money received for plaintiff's use will not render Article 62 applicable. In other words this article will not apply unless at the moment of receipt by the defendant the money can be said to be the plaintiff's and then and there payable. In the present case the plaintiff became entitled to refund of part of the money which he deposited as custom duty during the years 1944-45 1945-46 and 1946-47 on 1. 12. 48 after he deposited a sum of Rs. 277/6/- as income tax. The argument of the learned Deputy Govt. Advocate is that with effect from the date of the deposit of the income tax the sum of 277/6/- became refundable to the plaintiff and should be deemed to have been held by the defendant for the plaintiff's use. But such money would not be recoverable in England on an action for money had and received as at the moment of the receipt by the defendant the money cannot be said to be the plaintiff's. The Courts in this country have confined the application of Article 62 to cases in which an action for money had and received would lie in England. Therefore Article 62 cannot apply to the present case. The only article which can be applied is Article 120. In Roman Catholic Mission V. Sunder Singh (3) Article 62 was applied for recovery of a sum of money paid by the plaintiff to the defendant in excess of what was due to the latter. In Bhusawal Municipality V. Nusserwanji (2) Article 62 was applied to a suit for recovery of a certain amount of Municipal tax on the ground that it was illegally levied. In India Sugars and Refineries Ltd. V. Hospet Municipal Council (3) Article 62 was applied in a suit for recovery of professional tax wrongly levied by the Municipality. These cases are distinguishable from the present case in as much as in all of them the money was not legally payable when it was paid. In the present case the plaintiff only became entitled to a refund after he had deposited a sum of Rs. 277/6/- in the treasury as income tax. On the depositing of this sum he became entitled to a refund of Rs. 277/6/- out of the sum of Rs. 531/4/3 paid by him as customs duty for the same period. I accordingly hold that Article 120 is applicable to the present case and not Article 62. The cause of action arose on 1. 12. 48. The present suit which was instituted on 30. 11. 54 was within time. The learned Deputy Government Advocate filed a copy of Notification dated 28. 1. 49 issued by the United State of Rajasthan and argued that in view of this notification the plaintiff was not entitled to get a refund of customs duty. The notification runs as follows: *** *** Assuming that the notification was issued under the authority of Rajpramukh it is not retrospective and cannot effect the right of the plaintiff to get a refund which had accrued on 1. 12. 48, long before it was issued. Another argument by the learned Deputy Government Advocate on the basis of the above notification was that it shows that the United State of Rajasthan did not accept the liability to refund customs duty. In the written statement filed on behalf of the State liability was specifically admitted. It is not open to the State to repudiate it at this stage. I accordingly hold that the plaintiff is entitled to a decree for Rs. 277/6/ -. I, therefore, allow the revision application with costs, set aside the decree of the appellate court and decree the suit of the plaintiff for recovery of Rs. 277/6/- with costs. . ;