{"id":218466,"date":"1982-02-23T00:00:00","date_gmt":"1982-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-council-damoh-vs-vraj-lal-manilal-co-others-on-23-february-1982"},"modified":"2015-12-31T03:19:27","modified_gmt":"2015-12-30T21:49:27","slug":"municipal-council-damoh-vs-vraj-lal-manilal-co-others-on-23-february-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-council-damoh-vs-vraj-lal-manilal-co-others-on-23-february-1982","title":{"rendered":"Municipal Council Damoh vs Vraj Lal Manilal & Co. & Others on 23 February, 1982"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Municipal Council Damoh vs Vraj Lal Manilal & Co. & Others on 23 February, 1982<\/div>\n
Equivalent citations: 1982 AIR 844, \t\t 1982 SCR (3) 307<\/div>\n
Author: V Tulzapurkar<\/div>\n
Bench: Tulzapurkar, V.D.<\/div>\n
           PETITIONER:\nMUNICIPAL COUNCIL DAMOH\n\n\tVs.\n\nRESPONDENT:\nVRAJ LAL MANILAL & CO. & OTHERS.\n\nDATE OF JUDGMENT23\/02\/1982\n\nBENCH:\nTULZAPURKAR, V.D.\nBENCH:\nTULZAPURKAR, V.D.\nSEN, AMARENDRA NATH (J)\n\nCITATION:\n 1982 AIR  844\t\t  1982 SCR  (3) 307\n 1982 SCC  (1) 637\t  1982 SCALE  (1)436\n\n\nACT:\n     Central Provinces\t& Berar\t Municipalities\t Act,  1922-\nRules made  under the  Act-Rule 27(b)  of the  Octroi Rules-\nOctroi\tduty   paid  on\t  raw  material\t imported  into\t the\nmunicipality for  manufacture  of  bidis-Manufactured  bidis\nexported outside  the municipal\t limits-Refund, if allowable\nunder rule 27(b).\n     Words  &\tphrases:  \"manufacture\"\t and  \"manufacturing\nprocess\"-Meaning of.\n\n\n\nHEADNOTE:\n     The respondents  manufacture  and\tsell  bidis  in\t the\nstate. At  the time  of import\tof  tobacco  and  other\t raw\nmaterials into\tthe municipal  limits for the manufacture of\nbidis they  paid octroi\t duty payable under the rules. Their\nclaim for  refund  of  octroi  duty  on\t the  raw  materials\nutilised for  the bidis which they manufactured and exported\noutside the  municipal limits  was rejected by the municipal\ncouncil.\n     Rejecting the  appellant-council's contention  that the\nbenefit of  rule 27(b) of the Rules was not available to the\nrespondents for\t the reason  that the exported goods (bidis)\nwere not the same or identical as the imported raw materials\nthe Sub-Divisional Officer allowed the respondent's appeal.\n     In revision the High Court upheld the order of the Sub-\nDivisional Officer.\n     In appeal to this Court it was contended that refund is\navailable under\t rule 27(b) only where even after undergoing\nthe manufacturing  process the imported article retained its\nessential  character  as  such\tarticle\t and  the  same\t was\nexported outside  the municipal\t limits. (2) The respondents\nwere not  entitled to  refund as  they failed to satisfy the\ncommittee  that\t  the  same  or\t identical  goods  had\tbeen\nexported.\n     Dismissing the appeal,\n^\n     HELD :  1 (a)  Rule 27(b)\tof the Octroi Rules in terms\nprovides for refund of octroi paid on imported raw materials\nwhen such raw material is actually used within the municipal\nlimits for  manufacturing the  exported articles, Clause (b)\nof this\t rule itself speaks of the raw materials being \"used\nin the manufacture\"\n308\nso that\t use or\t consumption which  a manufacturing  process\nentails was  present to\t the mind of the framers of the rule\nwhen they  provided for the refund on the export of finished\ngoods manufactured within municipal limits. [313 F-H]\n     (b) The  well settled  connotation of \"manufacture\" and\n\"manufacturing process\"\t is that  as a\tresult of undergoing\nthe process,  a distinct commercial commodity different from\nthe raw\t materials,  comes  into  existence.  Therefore\t the\nexpression 'manufacture'  occurring in\trule 27(b) cannot be\ngiven a\t limited meaning as suggested by the appellant. [313\nH, 314 A-B]\n     2. The  proviso to\t the rule is not attracted to a case\nof manufactured\t goods falling under clause (b). The proviso\nis applicable  to cases\t where there  is an  export  of\t the\nimported goods\tthemselves without  subjecting them  to\t any\nmanufacturing process.\tIt is in such cases that in order to\nclaim refund  the exporter has to satisfy the committee that\nthe same goods on which import duty had been paid were being\nexported. The  proviso is not a proviso to clause (b) at all\nbut will  be applicable to the other parts of the rule. [314\nC, D, E]\n     3. It  is not just to permit the appellant to raise the\nplea of\t limitation in\tthe case  because at  one  stage  it\nacquiesced in  the trial  court's finding  and did not raise\nthe question  in appeal\t before the High Court. While asking\nfor a certificate for appeal the appellant did not raise the\nquestion of  limitation before\tthe High  Court nor  did  it\ninclude the  point of limitation in the memo of appeal filed\nin this\t Court. The  point raised  needs investigation\tinto\nfacts. [316 F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION : Civil Appeals Nos. 1048
\nof 1970 & 845 of 1971.\n<\/p>\n
     Appeals by\t certificate from  the judgment\t and  decree
\ndated the  11th March  & 15th  November 1969  of the  Madhya
\nPradesh High  Court (Jabalpur)\tin Misc\t Petition No.  96 of
\n1969 and in First Appeal No. 44 of 1966 respectively.\n<\/p>\n
\t\t\t    AND
\n     Civil Appeals Nos. 1047, 1048 & 1049 of 1971.
\n     Appeals by\t special leave\tfrom the judgment and decree
\ndated the  17th April, 1971 of the Madhya Pradesh High Court
\nat Jabalpur  in Second\tAppeal Nos.  415, 416  & 417 of 1966
\nrespectively.\n<\/p>\n
     D.V.  Patel,  S.S.\t Khanduja  and\tC.L.  Sahu  for\t the
\nAppellants in all the Appeals.\n<\/p>\n
     Dr.Y.S. Chitale and Rameshwar Nath for Respondent No. 1
\nin Civil Appeals Nos. 1048\/70 & 845 of 1971.\n<\/p>\n
309<\/span><\/p>\n
     Rameshwar Nath  for Respondent  No. 1  in Civil Appeals
\nNos. 1047-1049 of 1971.\n<\/p>\n
     Gopal Subramanium\tand S.A. Shroff for Respondents Nos.
\n2 & 3 in all the appeals.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     TULZAPURKAR, J.  The aforesaid  five appeals, the first
\ntwo on\ta certificate  granted by  the Madhya  Pradesh\tHigh
\nCourt and  the last  three by  special leave granted by this
\nCourt, raise a common question in regard to refund of octori
\nduty collected\tby the appellant-Council from the respondent
\nfirms and  are, therefore,  disposed of\t by common judgment.
\nThe principal  question raised\tin these  appeals relates to
\nthe proper  construction of  Rule 27  of the Octroi Rules of
\nDamoh Municipal\t Council (the  appellant) framed in exercise
\nof powers  conferred by\t ss.71, 76  and 85  of\tthe  Central
\nProvinces &  Berar Municipalities Act, 1922-which Rules were
\ncontinued in  operation even  after the coming into force of
\nthe new Act, the Madhya Pradesh Municipalities Act, 1961 and
\nthe question arises in these circumstances :\n<\/p>\n
     The two  respondent firms\tin the\ttwo sets  of appeals
\n(M\/s. Vraj  Lal Manilal & Co. and M\/s. Prabhudas Kishoredas)
\ncarry on  business of  manufacturing and  selling  bidis  in
\nDamoh and  other cities\t in  Madhya  Pradesh  and  for\tthat
\npurpose they  import tobacco and other raw material into the
\nMunicipal limits of Damoh city and after manufacturing bidis
\nout of such imported raw material they export their finished
\nproduct\t (bidis)   outside  Damoh   Municipal  limits.\t The
\nrespondents’ case  was that at the time of import of tobacco
\nand other  raw material\t into the  municipal limits of Damoh
\nthey paid  octroi duty\tas per Octroi Rules of the appellant
\nCouncil and  after  utilising  the  said  raw  material\t for
\npreparing bidis\t when they  exported the  manufactured bidis
\noutside the  limits of\tthe  appellant\tCouncil,  they\twere
\nentitled to  a refund of the octroi duty paid by them on the
\nraw material  so utilized  under Rule 27 of the Octroi Rules
\nbut inspite  of refund\tvouchers having\t been issued  by the
\nconcerned official  of the  appellant council and inspite of
\nhaving complied\t with the  Rules and procedure prescribed in
\nthat behalf,  the  appellant  Council  refused\tto  pay\t the
\namounts of the refund
\n310<\/span>
\nvouchers to them. In Civil Appeal No. 1048 of 1970 since the
\nclaim for  refund to  the sum of Rs. 33,409.52 based on 1866
\nrefund vouchers\t relating to  the period  from 4.12.1952  to
\n12.12.1959  arose   under  the\t old  Act,  namely,  Central
\nProvinces and  Berar Municipalities Act 1922, the respondent
\nfirm M\/s  Vraj Lal Mani Lal & Co. filed an appeal before the
\nSub Divisional\tOfficer Damoh  under s.\t 83 (1-A) of the Act
\nagainst the  refusal of\t the appellant-Council\tto make\t the
\nrefund. Apart  from raising  technical pleas  such  as\tnon-
\nmaintainability of  the appeal,\t bar of\t limitation etc. the
\nappellant Council  resisted the\t claim on  merits on the two
\ngrounds: (a)  that since  the raw  material had been used or
\nconsumed in  the manufacture of bidis and since the exported
\ngoods (finished\t products) were not the same or identical as
\nthe imported  raw material on which the octroi duty had been
\npaid no\t refund under  Rule 27\t(b)  was  available  to\t the
\nrespondent firm\t and (b) that the respondent firm had failed
\nto prove  to the  satisfaction of  the Municipal  Council as
\nrequired by  the proviso  to Rule  27 (b)  that the  same or
\nidentical goods\t were being  exported on which import octroi
\nhad been  paid by  them. The  Sub Divisional  Officer by his
\norder dated 30th June, 1961 negatived the technical pleas of
\nthe appellant  council, which order was finally confirmed by
\nthe High  Court on  25th February,  1963. The Sub Divisional
\nOfficer also over-ruled the defences raised by the appellant
\nCouncil on  merits and\tby his\tfinal order dated 4th April,
\n1964 directed  that  the  amount  of  1865  refund  vouchers
\naggregating to Rs. 33409.52 minus the amount recovered under
\n19 vouchers  should be\trefunded to the respondent firm. The
\nappellant Council  went in  revision to the State Government
\nbut the\t same was dismissed on 28th September, 1968. The Sub
\nDivisional  Officer’s\tdecision  as   well  as\t  the  State
\nGovernment’s  order  in\t revision  were\t challenged  by\t the
\nappellant Council  before the  High Court by a Writ Petition
\n(Miscellaneous\tPetition  No.  96  of  1969)  but  the\twrit
\npetition was  dismissed by  the High  Court summarily and in
\ndoing so the High Court followed its earlier judgment in the
\ncase of\t Municipal Committee,  Burhanpur v.  Allauddin Aolia
\nSaheb and  Co. where  in regard\t to a  similar\trefund\trule
\nobtaining in  Burhanpur Municipal  Committee the  Court\t had
\ntaken the  view that  “Octori duty  paid on  imported  tendu
\nleaves and  tobacco is\trefundable under  the provisions  of
\nRule 25\t (b) of the Rules framed under s. 85 of the Act when
\nbidis manufactured within the limits of the Municipal
\n311<\/span>
\nCommittee are  exported.” In  the  remaining  four  matters,
\nbeing Civil  Appeals 845,  1047, 1048  and 1049\t of 1971 the
\nclaims\tfor  refund  made  by  the  respondents\t in  similar
\ncircumstances were required to be prosecuted by filing civil
\nsuits against the appellant Council, inasmuch as when action
\nwas contemplated  by the  respondents, the  new Act, namely,
\nMadhya Pradesh\tMunicipalities Act  1961 had come into force
\nand no remedy by way of any appeal to Sub Divisional Officer
\nwas available.\tIn each of these suits the appellant Council
\nresisted the claims for refund on merits on the same grounds
\nmentioned above.  The respondents  failed in  their suits in
\nthe two\t lower courts but succeeded in second Appeals in the
\nHigh Court.\n<\/p>\n
     In these  appeals the  self-same two  contentions\twere
\nurged before  us on  behalf of the appellant-council. First,
\nsince Octroi duty is a levy on imported goods meant for use,
\nconsumption and\t sale there  of within\tthe municipal limits
\nand since the raw material (tobacco) was used or consumed in
\nthe manufacture\t of bidis  the same  or identical goods were
\nnot exported  by the respondent firms and so no refund under
\nRule 27\t (b) was available to the respondent firms. Secondly
\nno attempt  was made  by the respondent firms to satisfy the
\nMunicipal Committee  that the  same or\tidentical goods\t had
\nbeen exported as required by the proviso to Rule 27 (b). For
\nboth these  reasons it\twas urged that the respondent firms’
\nclaim to refund of octroi should have been rejected. Counsel
\nurged  that   these  points  did  not  arise  and  were\t not
\ndetermined in Allaudin Saheb’s case (supra).\n<\/p>\n
     The admitted  facts  in  these  appeals  are  that\t the
\nrespondent firms, who carry on the business of manufacturing
\nand selling  bidis imported  or brought\t into the  municipal
\nlimits of Damoh during the relevant period tobacco and other
\nraw material,  that they  paid the  requisite octroi duty on
\nsuch raw  material on  its import  at the  prescribed rates,
\nthat they  utilised the\t said raw material for manufacturing
\nbidis and they exported the finished product (bidis) outside
\nthe municipal  limits of  Damoh and  it was at that stage of
\nexport of bidis that they claimed under Rule 27 (b) a refund
\nof octori  duty paid  by them  on the  raw material from the
\nappellant Council.  The question raised is whether under the
\nsaid provision\tthey are entitled to the refund of octroi as
\nclaimed by  them. Rule\t27 which deals with refund of octroi
\nruns thus:\n<\/p>\n
312<\/span><\/p>\n
\t  “27. Refund  of  octroi.  On\tthe  exportation  of
\n     dutiable goods  outside municipal\tlimits the  exporter
\n     shall be  entitled to  a refund of duty paid on them at
\n     the time of their import, provided that,\n<\/p><\/blockquote>\n
\t  (a)  no refund shall be given, if the amount to be
\n\t       refunded be  less than  Re. 1 or if the claim
\n\t       be made\tafter the  expiry of two months from
\n\t       the date\t of export,  unless the\t exporter is
\n\t       able to explain satisfactorily the reason for
\n\t       the delay.\n<\/p><\/blockquote>\n
\t  (b)  the refund  on the  exported goods which have
\n\t       been  manufactured   within   the   municipal
\n\t       committee from  imported raw materials liable
\n\t       to octroi, shall not exceed the octroi on the
\n\t       raw materials used in the manufacture, and
\n\t  Provided that\t the exporter  shall not be entitled
\n     to a  refund of  octroi duty  unless he  proves to\t the
\n     satisfaction of  the committee  that the  goods brought
\n     for export belong to him and are the same on which duty
\n     was paid  by the  importer in  whose favour  the octroi
\n     receipt is\t produced in support of the claim for refund
\n     of duty.”<\/p><\/blockquote>\n
     In support\t of their  claim for  refund the respondents
\nobviously rely upon cl. (b) of Rule 27 under which refund is
\navailable  on\texported  goods\t provided  those  have\tbeen
\nmanufactured within  the municipal  limits from\t out of\t the
\nimported raw materials on which octroi has been paid and the
\nclause indicates that quantum of refund shall not exceed the
\noctroi duty  actually paid on such raw materials at the time
\nof  their   import.  Counsel  for  the\tappellant,  however,
\ncontended that in its very nature octroi is a duty levied on
\nimport of goods which are meant for use, consumption or sale
\nwithin the municipal limits and counsel urged that it cannot
\nbe disputed  that when raw material like tobacco is utilized
\nin the\tmanufacture of\tbidis such  raw material  is used or
\nconsumed in  the process  of  manufacture  and\tit  is\tsuch
\nfinished product  (bidis), a  disputed commercial  commodity
\nthat  is   being  exported   by\t the  respondent-firms\tand,
\ntherefore, no  refund under  cl. (b)  or Rule  27  would  be
\navailable to them. Counsel urged that the word ‘manufacture’
\noccurring in  the clause  must be  given a  limited meaning,
\nthat is to say, only such
\n313<\/span>
\nmanufacturing process  is contemplated\tby that clause which
\ndoes not  alter or  change  the\t identity  of  the  imported
\ncommodity  and\tonly  in  respect  of  the  export  of\tsuch
\nmanufactured goods  the refund\twould be  available and\t not
\nwhere the  imported commodity  gets converted  into  an\t all
\ntogether different  commercial article. Counsel also invited
\nour attention  to the proviso following cl. (b) which states
\nthat the  exporter shall not be entitled to refund of octroi
\nduty unless  he proves\tto the satisfaction of the committee
\nthat the goods brought for export are the same on which duty
\nhad been  paid by  the importer and according to Counsel the
\n‘bidis’ cannot\tbe said\t to be\tthe same  goods on which the
\nrespondent-firms could\tbe said\t to have  paid the  duty. In
\nother words refund is available under cl. (b) in cases where
\neven after undergoing the manufacturing process the imported
\narticle or commodity retains its essential character as such
\narticle or  commodity and  the same  is exported outside the
\nmunicipal limits. It is not possible to accept the aforesaid
\nconstruction sought  to be  placed  on cl. (b) of Rule 27 of
\nthe Octroi  Rules by  the appellant’s  counsel\tfor  reasons
\nwhich we  shall presently  indicate.  In  the  first  place,
\nthough it  is true  that octroi\t by its\t nature is a levy on
\nimport within  the municipal  limits of\t articles  or  goods
\nmeant for  use, consumption  or sale  therein that  does not
\nprevent a  Municipal Council  from  framing  a\trule  either
\ngranting exemption  from that  duty or\trefund of  such duty
\nafter its  collection in  cases of  certain type  of use  or
\nconsumption of\tthe imported  articles or  goods for certain
\npurposes. Secondly,  a\tMunicipal  Council  may\t do  so\t for
\nachieving     certain\t  objectives\t like\t  increasing
\nindustrialisation by  encouraging  manufacturing  activities
\nwithin its  limits. Clearly the avowed object of Rule 27 (b)
\nappears to  be of  this nature\tfor in terms it provides for
\nrefund of  octroi paid\ton imported  raw materials when such
\nraw-material is\t actually used\twithin the  municipal limits
\nfor manufacturing the exported article and it is in light of
\nthis  objective\t  that\tthe   said  rule  will\thave  to  be
\ninterpreted. Looked  at from this angle it will be difficult
\nto accept  the narrow  or limited  construction of  the word
\n‘manufacture’ appearing\t in  cl.  (b)  as  is  suggested  by
\nCounsel for  the appellant  and the same could not have been
\nintended by  the framers  of the  rule. Further\t clause\t (b)
\nitself speaks  of the  raw  materials  being  “used  in\t the
\nmanufacture”\t so  that   use\t or   consumption  which   a
\nmanufacturing process entails was present to the mind of the
\nframers of the Rule when they provided for the refund on the
\nexport of  finished goods  manufactured within the municipal
\nlimits. Moreover, the well-settled connotation of the
\n314<\/span>
\nconcept of ‘manufacture’ and ‘manufacturing process’ is that
\nas a  result of undergoing the process a distinct commercial
\ncommodity  different  from  the\t raw  materials\t comes\tinto
\nexistence;  it\t is  difficult\t to  visualise\t degrees  of
\nmanufacture as suggested by counsel for the appellant and in
\nany case  none could  be attributed  to the  framers of\t the
\nRule.  It   is,\t therefore,   not  possible  to\t accept\t the
\ncontention that\t the expression\t “manufacture” occurring  in
\ncl. (b)\t of Rule  27 should be given a limited meaning as is
\nsuggested. Turning  to the  proviso on which strong reliance
\nwas placed  by the counsel for the appellant, it seems to us
\nthat the  proviso by  its very\tterms is  not attracted to a
\ncase of manufactured goods falling under cl. (b). If cl. (b)
\nconfers the  benefit of\t refund of octroi duty on the export
\nof goods  manufactured\tout  of\t raw  material\tthen  it  is
\ndifficult to  appreciate how  the exporter  will be  able to
\nsatisfy the  Municipal Committee that the exported goods are
\nthe same  or identical\ton which  duty has  been  paid,\t for
\nadmittedly the\texported goods\tare the finished product and
\nno import  duty is paid thereon by the exporter. The proviso
\nin our\tview is applicable to cases where there is an export
\nof the\timported goods themselves without subjecting them to
\nany manufacturing  process and\tit is in such cases that the
\nexporter has to satisfy the Committee that the same goods on
\nwhich import  duty has\tbeen paid  are being  exported which
\nwould entitle the exporter to claim a refund; in other words
\nit is not a proviso to cl. (b) at all but will be applicable
\nto the\tother parts of the Rule. It is thus clear to us that
\nwhen raw  materials like  tobacco etc.\twere imported by the
\nrespondent-firms within\t the limits  of Damoh, on which they
\npaid octroi-duty  and when  they manufactured  bidis out  of
\nsuch raw-materials  and exported the same they were entitled
\nto get\trefund to the extent of quantum mentioned in cl. (b)
\nof Rule 27.\n<\/p>\n
     In view of our aforesaid conclusion that the proviso is
\nnot applicable\tto cases of manufactured goods falling under
\ncl. (b)\t of the\t rule the  second contention  urged  by\t the
\nCounsel for the appellant that the respondent-firms were not
\nentitled to  refund as\tthey failed to satisfy the Municipal
\nCommittee that the same or identical goods had been exported
\ndoes not  survive. That\t apart, the  High  Court  has  on  a
\nconspectus of the Octroi Rules came to the conclusion and in
\nour  view   rightly,  that   the  Octroi  Superintendent  is
\nresponsible for\t the proper  administration  of\t the  Octroi
\nDepartment in
\n315<\/span>
\nall its\t branches which\t necessarily includes  that it is he
\nwho should be satisfied as to the identity of the goods that
\nare to\tbe exported  or that are utilized in the manufacture
\nof goods which are to be exported.\n<\/p>\n
     The last contention sought to be urged on behalf of the
\nappellant-council before us related to the bar of limitation
\nto the\trespondents’ claim  arising under section 319 (2) of
\nthe Madhya  Pradesh Municipalities  Act,  1961\tand  counsel
\nfairly stated  that this arises only in Civil Appeal No. 845
\nof 1971.  The facts in this behalf are these: Civil Suit No.
\n1-B of\t1964, out  of which the aforesaid appeal arises, was
\nfiled by  the respondent-firm  M\/s Vraj Lal Manilal & Co. on
\n7.5.1964 claiming refund in respect of goods exported during
\nthe years  1959-1964; in other words, part of the claim from
\n1959 to\t 31st January,\t1962 arose  under 1922 Act while the
\nclaim pertaining  to the  period from 1.2.1962 to April 1964
\narose under  the  1961\tAct,  which  came  into\t force\tfrom
\n1.2.1962. The trial Court as well as the High Court took the
\nview that  non-payment of refund under the 1922 Act could be
\nagitated only by way of an appeal under section 83 and other
\nremedies were  barred under s. 84 of the Act and, therefore,
\nthat part  of the  respondent’s claim was dismissed as being
\nnot tenable  but both  the Courts  held that  non-payment of
\nrefund after  1.2.1962 could  be agitated  by a suit and the
\nsame was  tenable On  the question  of limitation  the trial
\nCourt held  that that  part of\tthe claim was not barred but
\nsince it  had negatived the respondent’s claim for refund on
\nmerits it  dismissed the  respondent’s suit entirely but the
\nHigh Court,  which reversed the trial Court’s view on merits
\nallowed the respondent’s claim in respect of refund vouchers
\nwhich had  been\t certified  and\t presented  after  1.2.1962.
\nSince, however,\t it was\t not possible for it to sort out the
\nrefund vouchers\t which had  been certified the High Court by
\nits judgment and decree dated 15.12.1969 remanded the matter
\nto the trial Court for determining the amount payable to the
\nrespondent-firm. Upon remand the trial Court on the basis of
\nstatements  made   by  the   parties  passed   a  decree  in
\nrespondent’s favour  for Rs. 21,023.53 with interest thereon
\n4% and this decree was drawn up on 23.4.1970.\n<\/p>\n
     Section 319 (2) of the 1961 Act runs thus;\n<\/p>\n
\t  “Every such  suit shall  be dismissed unless it is
\n     instituted within 8 months from the date of the accrual
\n     of the alleged cause of action.”\n<\/p>\n
316<\/span><\/p>\n
Relying upon  this provision counsel for the appellant urged
\nthat  since   the  suit\t had  been  filed  on  7.5.1964\t the
\nrespondent’s claim  for refund\tduring\t8  months  prior  to
\n7.5.1964 would\tbe within  limitation but  the rest  of\t the
\nclaim  from   1.2.1962\tto   7.9.1963  would  be  barred  by
\nlimitation and\tto that\t extent the  decree in favour of the
\nrespondent-firm deserves to be modified
\n     We are not inclined to entertain this contention sought
\nto be  urged by counsel for the appellant before us for more
\nthan one  reason. It  is true  that this  bar of  limitation
\nunder s. 319 (2) was pleaded by the appellant council in its
\nwritten statement  and an  issue thereon  was also raised at
\nthe trial  but the  trial Court\t held that the claim arising
\nunder  the   new  Act  after  1.2.1962\twas  not  barred  by
\nlimitation because  cause of  action arose on 24.9.1963 when
\nthere was  refusal to  pay or accede to the notice of demand
\nbut when  the matter was carried in appeal to the High Court
\nby the\trespondent firm against the dismissal of their claim
\non merits and the High Court reversed the trial Court’s view
\non merits and held that the plaintiffs’ claim for the period
\nsubsequent to  1.2.1962 was liable to be decreed, this point
\nof limitation  arising under  s. 319  (2) was neither raised
\nnor pressed  before the High Court. No contention was raised
\nthat the  refusal to  pay on  24.9.1963 did not give rise to
\nthe cause  of action  but that\tit arose on dates when goods
\nwere  exported\t and  refund   vouchers\t were  presented  or
\ncertified. Had\tit been\t pressed the  High Court would have,
\nwhile remanding\t the matter  given appropriate directions to
\nthe  trial  Court  in  that  behalf.  This  shows  that\t the
\nappellant council acquiesced in the trial Court’s finding on
\nthe question  of limitation,  namely, the  cause  of  action
\narose  on   24.9.1963.\tSecondly,   while  applying   for  a
\ncertificate from the High Court for appeal to this Court the
\nappellant-Council sought  the certificate on points touching
\nthe  merits  of\t the  claim  and  not  on  the\tquestion  of
\nlimitation. Further  in the  Memo of  Appeal filed  in\tthis
\nCourt the  grounds do  not include  the point of limitation.
\nLastly the point raised cannot be said to be a pure question
\nof law\tas it  will  require  investigation  into  facts  to
\nascertain the exact date or dates of accrual of the cause of
\naction. When  on the  point  of\t limitation  the  appellant-
\nCouncil had  at one  stage acquiesced  in the  trial Court’s
\nfinding and  did not raise the question in appeal before the
\nHigh Court  we do  not think  it would\tbe fair\t or just  to
\npermit the appellant-Council to raise the plea of limitation
\nin this Court,
\n317<\/span>
\nespecially when the result of allowing such plea might be to
\ndefeat\tthe just claim of the respondent firm.\n<\/p>\n
     In the  result the appeals are dismissed and each party
\nwill bear its own costs.\n<\/p>\n
P.B.R.\t\t\t\t\t  Appeals dismissed.\n318<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Municipal Council Damoh vs Vraj Lal Manilal & Co. & Others on 23 February, 1982 Equivalent citations: 1982 AIR 844, 1982 SCR (3) 307 Author: V Tulzapurkar Bench: Tulzapurkar, V.D. PETITIONER: MUNICIPAL COUNCIL DAMOH Vs. RESPONDENT: VRAJ LAL MANILAL & CO. & OTHERS. DATE OF JUDGMENT23\/02\/1982 BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-218466","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMunicipal Council Damoh vs Vraj Lal Manilal & Co. & Others on 23 February, 1982 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/municipal-council-damoh-vs-vraj-lal-manilal-co-others-on-23-february-1982\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Municipal Council Damoh vs Vraj Lal Manilal & Co. & Others on 23 February, 1982 - 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