P.C. Misra, J.
1. This appeal arises out of suit for recovery of a sum of Rs. 27,718,73 paise with costs and interest. Defendant No. 1 is the appellant in this appeal,
2. The plaintiff's case in brief is that it is a registered co-operative society sponsored by the Government of Orissa. Its business headquarters is at Parlakhemundi. It carries on business in varieties of goods and also undertakes the distribution work of Government goods. The Government of Orissa sponsored a scheme to supply chsmical fertilisers to the farmers through the Orissa State Cooperative Marketing Society Limited, known as 'the Apex Society, Regional Marketing Societies and Primary Societies constituted in the rural areas to cater to the needs of the farmer Rules were framed by Government for easy and, smooth distribution of the goods under the control and direction of the Director of Agriculture who has been impleaded in the suit as the second defendant. Government used to release their stork of chemical fertilisers in favour of the Apex Society and the latter used of distribute the stock among the Regional Marketing Societies for the purpose of stocking the same temporarily in their respective godowns and for distribution of the same among the various Primary Societies within their respective areas of operation for sale among the farmers. The plaintiff joined the scheme as a distributor for Parlakhemundi Sub-division under the Apex Society. As already stated, the plaintiff-Society is merely a distributor having no right to sell or deal wih the fertilisers other than distributing the same among the various Primary Societies in the manner prescribed by rules. During the suit period, the plaintiff had never brought any chemical fertiliser for its own use, consumption or sale within the limits of defendant No. 1 Municipality. The Municipality, however, collected octroi tax for the chemical fertilisers brought by the plaintiff for storage and distribution under coercion. The plaintiff further alleges that defendant No. 1 Municipality had never published or gave any intimation either to the individuals interested or to the public in general of the fact of imposition of octroi tax on fertilisers till December, 1967, but it continued to collect a total sum of Rs. 27,718.73 Paise as octroi tax on chemical fertilisers brought by the plaintiff into the local limits of the first defendant for storage during the period between 5-4-1963 and 23-10-1967. The plaintiff thereafter made several representations against the collection of octroi tax but the Municipality paid no heed thereto. The Plaintiff also brought the matter to the notice of the State Government and the State Government through the Urban Development Department vide letter dated 21-9-1966 exempted levy of octroi tax on fertilisers. The plaintiff moved the State Government through the Registrar of Co-operative Societies for refund of the octroi tax illegally collected by the first defendant and the State Government allowed refund in their letter dated 22-11-1967. The first defendant in obedience to Government's letter dated 21-9-1966 stopped collection of octroi tax but did not pay any heed to the claim for refund of the octroi tax already collected. The plaintiff thereafter issued a notice under Section 349 of the Orissa Municipal Act on 22-1-1968 which was replied by the Municipality through its Advocate on 7-3-1968 denying the liability to refund the octroi tax collected from the plaintiff and further asserted that the executive orders of Government were invalid and did not bind the Municipality. According to the plaintiff, the levy of ctori tax and collection thereof being contrary to law, it is entitled to refund of the same for recovery of which the aforesaid suit has been filed.
3. The Director of Agriculture and the Orissa State Co-operative Marketing Society Limited have been impleaded in the suit as defendants 2 and 3 respectively, but no relief has been claimed against them. The second defendant filed a written statement admitting therein the factual aspects relating to collection of octroi tax and prayed for dismissal of the suit as against him on the ground that no notice under Section 80, Civil P.C., had been served on him. It has also been stated in the written statement of defendant No. 2 that the suit is not maintainable and is barred by limitation. The third defendant did not appear in spite of service of summons and was consequently set ex parte.
4. The first defendant, namely, the Municipal Council of Parlakhemundi, alone contested the suit by filing a written statement. The fact of collection of octroi tax from the plaintiff during the period mentioned in the plaint was not denied by the first defendant but the liability to refund the same was seriously disputed. It was alleged in the written statement that the plaintiff was selling chemical fertilisers and doing business in the same within the jurisidction of the Parlakhemundi Municipality and as such, the levy and collection of octroi tax during the suit period were not illegal; the imposition of octroi tax on chemical fertilisers haivng been made after compliance of all the legal procedures was enforceable against the plaintiff and the orders of the Government relied upon by the plaintiff had no legal validity in as much as Government had no authority to ask the Municipality not to collect the said tax. It was futher pleaded that Government in their letter dated 12-4-1967 had made it clear that it was for the Municipal Council either to exempt or levy octroi tax on fertilisers. An objection was taken that the suit was not maintainable as the application for refund of octrio tax in the prescribed form had not been made as per the provisions of the octrio Rules. It was also stated that the plaintiff did not send any previous intimation in accordance with Rule 10 of the octroi Rules and no declaration as per Rule 11(1) had also been made as required under the said Rules. Fur the aforesaid reasons as also on the ground of limitation, the suit was sought to be dismissed with costs.
5. The learned Additional Subordinate Judge of Berhampur who heard the suit has decreed the suit in part against defendant No. 1 for a sum of Rs. 6115.50 Paise with proportionate costs against which defendant No. 1 has come up in this appeal. The plaintiff on receipt of the appeal notice has filed a cross-appeal contending that the suit should have been decreed in full.
6. The learned Additional Subordinate Judge found that the first defendant had not complied with the provisions of Section 388 (3) and 392 of the Orissa Municipal Act for collectng octrio tax and was, therefore, not entitled in law to collect the same during the suit period, i.e. between 5-4-1963 and 27-9-1967. He, however, found that the suit should be governed by Article 120 of the Limitation Act of 1908 (Act 9 of 1908) (for short 'the old Act') which corresponds to Article 113 of the Limitation Act of 1963 (Act 36 of 1963) (for short 'the new Act'). Article 120 of the old Act provided the period of limitation of six years for suits for which no period of limitation was provided elsewhere in the Schedule. The starting point of limitation according to that Article is the date when the right to sue accrues. In the new Act, the period has been reduced to 3 years in the 'omnibus' Article 113. Thus, there being a reduction of the period of limitation from 6 years to 3 years in the new Act, the learned Additional Subordinate Judge came to the conclusion that the plaintiff's claim for the period beginning from 1-1-1964 to 6-5-1966 would get barred by time in as much as the new Act came into force with effrect from 1st January, 1964, and a suit, the cause of action for which arose after 1-1-1964, would be governed by Article 113 of the new Act. The trial court thus came to the conclusion that the suit having been filed on 7-5-1969, any claim made prior to 7-5-1966 would get barred by time. The suit was, therefore, decreed for refund of the octroi tax collected within the period from 7-5-1966 to 27-9-1967 which fell within three years from the date of filing of the suit.
7. In this appeal, the appellant has assailed all the findings recorded by the learned Additional Subordinate. Judge.
8. Section 131 of the Orissa Municipal Act, 1950 provides for imposition of taxes. Clause (kk) of Sub-section (1) of the said section lays down that octroi tax on goods brought withint he limits of a Municipality for consumption, use or sale therein can be imposed. The Proviso to Clause (kk) imposes a restriction that no such imposition of octroi tax shall be made without the sanction of the State Government. The trial court on a consideration of Exts. 17 and 18 wchih are Circulars of the Registrar of Co-operative Societies, Orissa, and the Agreements Exhibite 19 series came to the conclusion that during the period in question the plaintiff had been functioning as a mere distributor and collectng 5% as commission for storage etc. for storage etc. The said documents further revealed that none of the transactions carried on by the plaintiff within the local limits of the Parlakhemundi Municipality amounted to consumption, use or sale withint the meaning of Section 131(1)(kk) of the Orissa Municipal Act, 1950. We have gone through the aforesaid documents and our conclusion is that the fertilisers brought by the plaintiff into the local limits of the Parlakhemundi Municipality were not for its own consumption, use or sale therein. Thus, apart rom the fact as to whether regulations or bye laws have been framed by the Municipality in conformity with Section 388 (3) or Section 392 of the Orissa Municipal Act and as to whether octroi tax becomes realisable in the absence of such regulations or byelaws, the plaintiff's liability to pay octroi tax would not arise unless the transactions carried on by the plaintiff come within the ambit of Clause (kk) of Sub-section (1) of Section 131 of the Municipal Act. Learned counself or the apellant has fairly conceded that imposition of octroi fax would be illegal if the goods brought by the plaintiff into the municipal limits are not for its consumption, use or sale withint the municipal area. In these circmstances, the collection of octroi tax by the defendant-Municipality was illegal and the plaintiff would be entitled to refund of the same. The fact that the defedant-Municipality collected octroi tax under receipts Ext. 16 series from the plaintiff is not disputed. Therefore, the only question now left to be decided is the question of limitation.
9. The learned Additional Subordinate Judge has come to the conclusion thai Article 120 of the old Act would govern the suit. According to him, the period of 6 years prescribed under Article 120 of the old Act has been reduced to 3 years under Article 113 of the new Act which came into force with effect from 1-1-1964. By applying the principles under Section 30 of the new Act, the trial court held that the suit could be filed within five years from the date of coming into force of the new Act. The conclusion, therefore, was that the tax collected prior to 1-1-1964 could be validly recovered if the claim for the same was made by 1-1-1969. In this view of the matter, the claim for refund of the payments of octroi tax made between 5-4-1963 and 31-12-1963 was held to have been barred by time and it was further found that since Article 113 of the new Act, which prescribes a period of 3 years, applied to the transactions made after 1-1-1964, the casue of action for which had arisen three years prior to the institution of the suit, the claim for refund of the octroi tax collected between 1-1-1964 and 6-5-1966 would also get barred by time.
10. In our view, the entire analysis of the learned Additional Subordinate Judge is wrong though the ultimate conclusion that the octroi tax collected three years prior to the institution of the suit is barred by time is correct. Article 120, called the 'omnibus' Article of the old Act, applies to suits for which no period of limitation is provided elsewhere in the Schedule. The Article being final and residuary, the court ought not to regard a case as coming under this Article unless it is satisfied that it does not come under any of the other Articles dealing with the subject. The payments of octroi tax made by the plaintiff prior to 1-1-1964 would no doubt be governed by the old Act. The nature of transactions as it appears from the pleadings and proved by the documents exhibited in the case clearly comes within Article 62 of the old Act which runs as follows:--
'For money payable by defendant to the plaintiff for money received by the detendant for the plaintiff's use,Three yearsWhen the money is received.
In order to attract Article 62, it is not necessary that the defendant should have actually intended to receive it for the use of the plaintiff at the moment of receipt, of the money. It is sufficient if receipt of the money by the defendant creates an obligation in law to retain it for the use of the plaintiff and refund to him when demanded. In the case reported in AIR 1965 SC 1773 (A. Venkata Subbarao v. State of Andhra Pradesh) their Lordships of the Supreme Court have held that if the money was received as tax by the defendant-State from the plaintiff which the plaintiff was not bound in law to pay but which he was compelled or. forced to pay because of the threats or apprehension of the legal process, then, notwithstanding that the receipt by the defendant purported to be for his own benefit, it was the money which at the very moment of receipt, in justice and equity, belonged to the plaintiff and the suit claiming refund thereof would be governed by Article 62. The basis of Article 62 as explained by Mookerjee, J. in the case reported in (1905) ILR 32 Cal 527 (Mahomed Wahib v. Mahomed Ameer) was accepted to be the correct interpretation of law. This view of their Lordships finds support from various other decisions discussed in the said judgment. Once it is held that Article 62 of the old Act governs the case of the plaintiff the cause of action for which arose prior to 1-1-1964, the corresponding Article 24 of the new Act would govern the transactions made thereafter. The period of limitation in Article 62 of the old Act as well as in Article 24 of the new Act is 3 years, the starting point being when the money is received. Thus, Section 30 of the new Act has no application whatsoever in the facts of this case as the period of limitation provided under the old Act and the new Act is the same. In this view of the matter, it is unnecessary to consider the benefit the plaintiff would have got had Section 30 of the new Act been applicable. It may, however, be noted that the learned Additional Subordinate Judge has not taken into consideration the amendment by Act 10 of 1969 to Section 30 of the new Act whtch enhances the period to 7 years. We refrain from considering the effect of the said amendment inasmuch as in our view Section 30 does not at all apply to the facts of this case. The conclusion, therefore, is that the octroi tax paid by the plaintiff to the defendant-Municipality within the period from 7-5-1966 to 6-5-1969 is recoverable and the rest would be barred by time.
11. In the result, the appeal as well as the cross-appeal fail. Parties are to bear their respective costs of this Court.
J.K. Mohanty, J.
12. I agree.