Holding

The suit is not barred; the limitation period begins when the appellants could with reasonable diligence have known of the mistake of law, so the appeal is allowed.

Summary

The appellants, liquor contractors, were required to pay an additional 7.5% mahua and fuel cess on contracts awarded by the Madhya Pradesh Government. The High Court declared the levy illegal in Surajdin (1960) and Doongaji (1962), but the Government continued to collect it, resulting in the appellants paying Rs.54,606 extra. After learning of the High Court decisions in September 1962, they gave notice under CPC s.80 and filed a suit on 24‑12‑1964 for refund of the amount. The Government contended that the suit was barred by limitation, relying on the 1908 Limitation Act, while the appellants argued that limitation should be governed by the 1963 Act, Sec.17(1)(c) and Article 113, which start the period when the plaintiff discovers the mistake of law. The Supreme Court held that the suit was not time‑barred because the appellants could not have known of the mistake until at least a week after the internal letter of 17‑10‑1961 or, more realistically, when the High Court judgments became known in 1962, and therefore the three‑year limitation period had not expired. The appeal was allowed and the suit remanded for determination on its merits.

Issues considered

The appropriate limitation provision for a suit seeking refund of money paid under a mistake of law.
When the limitation period commences – from the date of the Government's internal decision or from the date the appellants could with reasonable diligence discover the mistake.
Whether the suit for refund is barred by limitation under the 1908 Limitation Act or the 1963 Limitation Act.
Whether the doctrine of unjust enrichment and Section 72 of the Indian Contract Act apply to the claim.

Legislation cited

Subjects

mistake of lawrefund of taxlimitation periodSection 72unjust enrichmentcivil suitrestitutionIndian Contract ActLimitation Act 1963

Judgment

MAHABIR KISHORE & ORS.
A v.
STATE OF MADHYA PRADESH

JULY 31, 1989

[G.L. OZA AND K.N. SAIKIA, JJ.]
B
Indian Contract Act-Section 72-Suit for refund of money paid by
mistake of law-Period of limitation-three years.

Limitation Act 1968-Section 17( l)(c) and Schedule Article 113- ,
Suit for refund of money paid under mistake of law-Period of limita- fk
C lion-Three years-Date of knowledge of particular law being declared
void-Date of judgment of the competent court declaring that law void. ·"'

Words and pharases: 'Nul ne doit senrichir aux depens des
autres'-'Jndebitatus assumpsit'-'Aequum et bonum'-Meaning of.
D The appellant firm was allotted contracts for manufacture and
sale of liquor for the year 1959 and for the subsequent periods from
1.1.1960 to 31.3.1961 for Rs.2,56,200 and Rs.4,71,900 respectively by
the M.P. Govt. who also charged 7-1/2% over the auction money as
mahua and fuel cess. As writ petitions challenging the government's
right to charge this 7-1/2% were pending in the M.P. High Court, the
E Govt. announced that it would continue to charge it and the question of
stopping it was under consideration of Govt. wltose decision would be
binding on the contractors. The appellant firm paid for the above con-
tracts a total extra sum of Rs.54,606.00. On 24.4.1959 the M.P. High -
Court in Surajdin v. State of M.P., [1960] MPLJ 39 declared the collec-
tion of 7-1/2% as illegal. Even after this decision the Govt. continue to
F charge 7-1/2% extra money. Again on 31.8.1961, the High Court of
Madhya 1 Pradesh in N.K. Doongaji v. Collector, Surguja, [1962]
MPLJ. 130 decided that charging of 7-1/2% by the Govt. above the
auction money was illegal. Appellants came to know of this decision only
in or about September, 1962.

G On 17.10.1964 the appellants gave a notice under section 80
C.P.C. to the Govt. of Madhya Pradesh requesting for the refund of
Rs.54,606.00. failing which a suit for recovery would be riled and later
they instituted a civil suit in the court of additional District Judge,
Jabalpur on 24.12.1964. The Govt. resisted the suit inter alia on the
ground of limitation. The Trial Court held that the suit was barred by
H
MAHABIR K!SHORE v. STATE OF M.P. 597

---., limitation and dismissed it. The High Court also dismissed the appeal. A
The appellants then came up in appeal by special leave. While allowing
the appeal and remanding the suit to the Trial Caurt for decision on
merits. This Court,

HELD: 'Nul ne doit senrichir aux depens des autres' No one ought
~ to enrich himself at the expense of others. This doctrine at one stage of B
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 money paid under a mistake or extorted from the plaintiff by
~-duress of his goods, or paid to the defendant on a consideration which
I totally failed. On abolition of 'indebitatus assumpsit', courts used to
imply a promise to pay which, however, in course of time was held to he c
.,_,.. purely fictitious. [601G-602A]

Courts is England have since been trying to formulate a juridical
basis of this obligation. Idealistic formulations as 'aequum et bonum'
and 'natural justice' were considered to he inadequate and the more
legalistic basis of unjust enrichment is formulated. The doctrine of D
"unjµst enrichment' is that in certain situations 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 con-
.). tract. But the English law has not yet recognised any generalised right
to restriction in every case of unjust enrichment. [602H-603B]
E
The principle of unjust enrichment requires; first, that the
- defendant 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 he unjust. This justified restitution.
Enrichment may take the form of direct advantage to the recipient
wealth such as by the receipt of money or indirect one for instance F
where inevitable expense has been saved. [603C-603D)

There is no doubt that the suit in the instant case, is for refund of
money paid by mistake and refusal to refund may result in unjust
enrichment depending on the facts and circumstances of the c~. [6040)
G
Though there is no constitutionally provided period of limitation
for petitions under Article 226, the limitation prescribed for such suits
has been accepted as the guideline, though little more latitude is avail-
able in the former. [604F)

For filing a writ petition to recover the money paid under a mis- H
598 SUPREME COURT REPORTS [l989) 3 S.C.R.

take of law the starting point of limitation is three years as prescribed
A by Article 113 of the Schedule to the Indian Limitation Act, 1963 and
· the provisions of S. 17(i)(c) of the 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, being declared void and this
could be the date of the judgment of a competent court declaring that
B law void. [609B]

Moses v. Macferlan, [1760) 2 Burr. 1005 at 1012; Sinclair v.
Brougham, [1914) AC 398; Fibrosa Spolka v. Fairbairn Lawson, [1943)
AC 32 = (1942) 2 All E.R. 122; Sales Tax Officer v. Kanhaiya Lal,
[1959] SCR 1350; Mis Budh Prakash Jai Prakash v. Sales Tax Officer:·~
Kanpur,. [1952) ALJ 332; Kiriri Cotton Co. Ltd. v. Ranchhoddas
c Keshavji Dewani, [1960] AC 192; D. Cawasji & Co. v. The State of -..(
Mysore & Anr., [1975) 2 SCR 511; Madras Port Trust v. Hy.manshu
International, [1979] 4 SCC 176; Shri Vallabh Glass Works Ltd. v.
Union of India, [1984] 3 SCR 180; Commissioner of Sales Tax, U.P. v.
Mis. Auriaya Chamber of Commerce Allahabad, [1986) 3 SCC 50;
Sales Tax Officer v. Budh Prakash Jai Prakash, [1954) 5 STC 193;
D
Sa/onah Tea Co. Ltd. & Ors. v. Superintendent of Taxes, Nowgong &
Ors., [1988) I SCC 401; Atiabari Tea Co. Ltd. v. State of Assam; AIR
1961 SC 232; Khyerbari Tea Co. Ltd. v. State of Assam, [1964) 5 SCR
975; Loong Soong Tea Estate's, case decided on July JO, 1973; Sugan- ..(
ma/ v. State of M.P., AIR 1965 SC 1740; Tilokchand Motichand v.
H.B. Munshi, [1969] 2 SCR 824, referred to.
E
CIVIL APPELLATE JURffiDICTION: Civil Appeal No. 1826
(N) of 1974. -
From the Judgment and Order dated 6.4. 1972 of the Madhya \I,
Pradesh High Court in F.A. No. 23·of 1966. i"
F
M. V. Goswami for the Appellants.

U .A .. Rana and S.K. Agnihotri for the Respondents.

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
2. 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.

3. 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

j
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
E 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
F 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
~ !ti
~,:

~
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 E
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 F
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
D 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
E 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,
G 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
H 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 G
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 H
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
MAHABIR KISHORE v. STATE OF M.P. [SAIKIA, J.] 605

~ 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 D
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 E
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
606 SUPREME COURT REPORTS [ 1989] 3 S.C.R.

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.

In Commissioner of Sales Tax, U.P. v. Mis Auriaya Chamber of
Commerce Allahabad, I 1986] 3 SCC 50, the Supreme Court in its
decision dated May 3, 1954 in Sales Tax Officer v. Budh Prakash Jai B
Prakash, [ 1954] 5 STC 193 having held tax on forward contracts to be
illegal and ultra vires the U.P. Sales Tax Act, and that the decision was
applicable to the assessee's case, the assessee filed several revisions for
qua,hing the assessment order for the year 1949-50 and for subsequent
years which were all dismissed on ground of limitation. In appeal to
···~ this Court Sabyasachi Mukharji, J. while dismissing the appeal held
c
that money paid under a mistake of law comes within mistake in s. 72
.,... of the Contract Act; there is no question of any estoppel when the
mistake of law is common to both the assessee and taxing authority.
His Lordship observed thats. 5 of the Limitation Act, 1908 and Article
96 of its First Schedule which prescribed a period of 3 years were
applicable to suits for refund of illegally collected tax. D

In Salonah Tea Co. Ltd. & Ors. v. Superintendent of Taxes,
Nuwgung and Ors., [ 19881 1 SCC 401, the Assam Taxation (on Goods
carried by Road or Inland Waterways) Act, 1954 was declared ultra
vies the Constitution by the Supreme Court in Atiabari Tea Co. Ltd. v.
State of Assam, AIR 1961 SC 232. A subsequent Act was also declared E
,/
ultra vires by High Court on August 1, 1963 against which the State of
Assam and other respondents preferred appeals to Supreme Court.
Meanwhile the Supreme Court in a writ petition Khyerbari Tea Co.
Ltd. v. State of Assam, [1964] 5 SCR 975, declared on December 13,
1963 the Act to be intra vires. Consequently the above appeals were
allowed. Notices were, therefore, issued requiring the appellant under F
·~ s. 7(2) of the Act to submit returns. Returns were duly filed and
assessment orders passed thereon. On July 10, 1973, the Gauhati High
Court in its Judgment in Loong Soong Tea Estate's case, Civil Rule
No. 1005 of 1969, decided on July 10, 1973, declared the assessment to
be without jurisdiction. In November, 1973 the appellant filed writ
petition in the High Court contending that in view of the decision in G
Loong Soong Tea Estate's case he came to know about the mistake in
paying tax as per assessment order and also that he became entitled to
refund of the amount paid. The High Court set aside the order and the
notice of demand for tax under the Act but declined to order refund of
the taxes paid by the appellant on the ground of delay and !aches as in
view of the High Court it was possible for the appellant to know about H
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.