1. This is a reference under Section 18 of the Ajmere Courts Regulation No. 1 of 1877. The plaintiff company carried on business as general merchants in Ajmere and for the purposes of its trade imported Oilman's Stores and other articles for sale. They sued the Municipal Board of Ajmere for recovery of a sum of Rs. 81-7-0 said to have been wrongly charged against them by the Board for octroi duty for goods imported into India by sea between the 20th of January 1899 and the 24th of April 1899 and also to recover a sum of Rs. 1,510-15-5 alleged to have been charged against the company for octroi duty on goods similarly imported between the 24th of April 1899 and the 6th of March 1901 in excess of the maximum duty chargeable. The allegation of the company is that in respect of the duty charged during the first mentioned period, culinary goods are distinctly exempted from duty by the resolution of the Governor-General in Council dated the 6th of November 1868 and as to the rest of its claim the company says that from the 24th of April 1899 to the 6th of March 1901, the Board wrongly charged the plaintiff company the sum above mentioned in excess of the maximun duty chargeable under the resolutions of the Government of India Nos. 55 to 60 of the 24th of April 1899. The prayer of their plaint in that a decree may be passed in favour of the plaintiff company for the two sums above mentioned.
2. The learned Assistant Judicial Commissioner dismissed the suit holding that the claim fell within Article 2 of Schedule II to the Limitation Act and was barred by limitation.
3. This decision was 'upheld by the learned District Judge.
4. The present reference has been made and a ruling of this Court is solicited on the following points:
1. Whether the case is governed by Article 2 of Schedule II of the Limitation Act XV of 1877 or Article 61 or 62 or 120.
2. Whether the Resolutions of the Government of India dated the 6th of November 1868 and 24th of April 1899, applied.
5. We shall first deal with question No. 2. In 1868 Ajmere was under the administration of the Government of the North Western Provinces. In 1889 it became a separate administration but in 1871 was placed under the Government of India. In the Resolution of the Government of India of the 6th of November 1868, which appears in the issue of the Gazette of the 14th of November 1868, articles liable to customs duty and imported into India by sea were exempted from assesment to octroi duty. By the resolution of the Government Nos. 55-60, dated the 24th of April 1899, a maximum rate of duty on articles subject to sea customs duty was prescribed, viz., Rs. 1-9-0 per cent. Under 'section 41, Regulation No. V of 1886, the Municipal Committee of A jmere Merwara was empowered with the previous' sanction of the Chief Commissioner and subject to any general rules or special orders which the Governor-General in Council may make in this behalf' to impose in the whole or any part of the Municipality among other taxes an octroi on goods brought within the Municipality for consumption or use therein.
6. It will be observed that the power thus conferred is subject to any general rules or special orders passed by the Governor General in Council. From the 6th of November 1868 up to the 24th of April 1899 the Resolution of the Government of India of the 6th of November 1868 was in force and sea-borne goods were exempted from liability to any octroi duty. From the date of the Resolution of the 24th of April 1899 up to the 17th of December 1903, when a further Resolution of the 24tb of April 1899 was passed raising the rate of duty--the maximum rate of octroi duty chargeable by the Municipality was Rs. 1-9-0 per cent. Whether the Municipal Committee was or was not aware of these Resolutions, it ought to have been aware of them as the power conferred upon them' to impose taxes was expressly subject to any general rules or special orders passed by the Governor-General in Council. The Committee ought to have made enquiry and ascertained if there were any such, general rules or special orders in existence and it is idle for the Committee under the circumstances to contend that the tax imposed by it was imposed in good faith. It was in direct violation of the Regulation under which the Committee purported to act. We are wholly unable to agree with the learned Assistant Commissioner and District Judge that the tax complained of was not illegally levied. The fact that the Resolutions of 1868 and 1899 were not forwarded to the Municipality is beside the question. It was the duty of the Municipal Committee to enquire and ascertain if there were any such Resolutions in existence before they imposed taxes. We have no hesitation, therefore, in answering question No. 2 in the affirmative, namely, that the Resolutions of the Government of India of 1868 and 24th of April 1899, do apply.
7. The remaining question for consideration is whether the present case is governed by Article 2 of Schedule II of the Limitation Act or Articles 61 or 62 or 120. Articles 61 and 120 clearly do not apply., The language of Article 62 is borrowed from the form of count in vogue in England under the Common Law Procedure Act of 1852. Prior to the passing of the Supreme Court of Judicature Acts of 1873 and 1875, there was a number of forms of pleading known as the common indebitatus counts, such as, counts for money lent, money paid by the plaintiff for the use of the defendant at his request, money received by the defendant for the use of the plaintiff &c.; These forms are no longer in use. Statements of claim must now be more specific and must contain a statement in a summary form of the material facts on which the plaintiff relies. The most comprehensive of the old common counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstance;-, which rendered the receipt of it a receipt by the defendant to the use of the plaintiff. It was a form of suit which was adopted when a plaintiff's money had been wrongfully obtained by the defendant, as for example, when money was exacted by extortion or oppression or by abuse of legal process or when over charges were paid to a carrier to induce him to carry goods or when money was paid by the plaintiff in discharge of a demand illegally made under colour of an office. It was a form or claim which was applicable when the plaintiff's money had been wrongfully obtained by the defendant, the plaintiff in adopting it waiving the wrong and claiming the money as money received to his use [e.g. see Morgon v. Palmer 2 B. and C. 729 : 26 R.R. 537 : 2 L.J. (O.S.) K.B. 145 : 4 D. and R. 283, also Neate v. Harding 6 Ex. 349 : 86 R.R. 328 : 20 L.J. Ex. 250.]
8. A suit for compensation or damages is a suit of a different nature. In it a plaintiff does not seek for the return of a specific sum of money but damages to be assessed by the Court for a wrongful act. Now in the case before us the plaintiff company does not ask for compensation or damages. In the plaint in clear and express terms it asks for a decree for the payment of two specific sums representing amounts illegally taken by the Municipality, one sum representing amounts received between the 20th of January 1899 and the 24th of April 1899 and the other representing sums taken after the 24th of April 1899, being the difference between 6 1/4 per cent, actually taken for duty and Bs. 1-9-0 per cent, which the Municipality was by the Resolutions of Government permitted to realise. This is in the nature of a claim for money had and received by the defendant Municipality for the plaintiff's use and is not a claim for compensation or damages. It is the old count for money had and received in modern dress. If the plaintiff company had sought compensation under Article 2, it would have been open to it to claim a much larger sum than the sum actually claimed. For example, it might have reasonably claimed interest on the amount of the sums improperly taken by the Municipality from time to time. The claim, in our opinion, therefore^ clearly comes within Article 62 and not within Article 2.
9. The learned Judicial Assistant Commissioner observes that the suit is 'Virtually a suit in respect of an act done in pursuance of an enactment.' It may be so. But it is not a suit for damages or compensation. In holding that the suit was one coming under Article 2, he relied upon two cases decided by the Chief Court of the Punjab in which it was held that a suit for the refund of money wrongfully levied under the colour of law was a suit for compensation to which Article 2 would apply. In the judgment in one of these cases Seth Karimji v. Sardar Kirpal Singh 123 P.R. 1886, Plowden, J., in delivering judgment observed as follows: 'I think, therefore, that notwithstanding the suit may fall within the description given in Article 62 or 96 of the second Schedule and be in other respects maintainable in either of these forms of it for the purposes of limitation, the defendant is entitled to rely upon the suit being in substance of the description given in Article 2 and to insist upon the benefit of the provisions of Article 2.' We are wholly unable to agree with the learned Judge in the opinion thus expressed.
10. In the judgment in Narpat Rai v. Sardar Kirpal Singh 65 P.R. 1886 (in the same number of the Punjab Report at page 138), which was also relied upon by the Courts in Ajmer, it is stated that to bring a suit for a refund under Article 2, it is requisite for the defendant to show amongst other things that the relief sought falls under the term 'compensation' as used in this schedule. We agree as to this. But if it was intended by the learned Judge in these cases to lay down the proposition that where a plaintiff has an option to bring his suit in the form of a suit for money received by the defendant for his use or in the form of a suit for compensation for doing or omitting to do an act, alleged to be in pursuance of an enactment in force for the time being in British India, and he elects to proceed for money received for his use, the fact that he might have claimed damages or compensation entitled the defendant to the benefit of the shorter period of limitation allowed by Article 2, we cannot agree with them. If the relief sought in the claim had been for damages or compensation, different considerations would arise. In the case before us the relief is not such. The claim is one for specific sums received by the defendant Municipality for the plaintiff .company and cannot, we think, be properly regarded as a claim for compensation or damages.
11. For these reasons we are of opinion that Article 62 is the article of the Limitation Act which applies to the case and that neither Article 2 nor Article 96 or 120 has any application.
12. This is our answer to the reference.