STATE OF KERALA Vs. ALAM TAPIOCA PULVARISORS

JUDGEMENT

(1.) PLAINTIFF, State of Kerala, is the appellant in all these appeals. As. nos. 290, 294,295 and 297 of 1981 respectively arise out of O. S. No. 67,64,66 and 65 of 1976 on the file of the 1st Additional Sub Court, Kozhikod e. As common question arises in all the above suits, they were tried jointly by the court below. The pleadings and reliefs sought for in all the suits are of the same pattern and therefore it is sufficient to refer to the pleadings and reliefs in one suit to understand the respective contentions of the parties and the reliefs claimed in all the suits and to avoid unnecessary repetitions of the contentions and reliefs in each suit.

(2.) IN O. S. No. 64 of 1976, plaintiff sought a decree canceling the judgment and decree in O. P. No. 534 of 1970 on the file of this court, which was confirmed by the Supreme Court in so far as it relates to the refund of the amount, paid in excess. The material averments in the plaint in that suit are as follows: 1st defendant is a firm dealing in tapioca. Government by virtue of the powers conferred upon it under Clause 3 (e) (iii) of the Essential Commodities Act, passed G. O. (MS) No. 18/66/food dated 15-4-1966 levying an administrative surcharge for the export of varying quantities of tapioca at the prescribed rates. 1st defendant exported tapioca in the years 1966 to 1970 and paid to Government, an amount of Rs. 26, 332. 50 as administrative surcharge on different dates. IN 1970, 1st defendant filed o. P. No. 534 of 1970 before this Court seeking to quash the order levying administrative surcharge and to direct refund of the amount paid by them. IN that petition, 1st defendant willfully and wrongly stated that the amount paid by them to Government by way of administrative surcharge was to the tune of rs. 1 lakh. The amount was not specified. This Court disposed of the original petition on 27-9-1971 quashing the levy and directing refund of amounts claimed by the petitioners therein. IN the decretal order, the amount claimed by the petitioners was shown as Rs. 1 lakh. The State filed an appeal before the supreme Court, challenging the order passed by this Court, which was dismissed. While the appeal was pending, 1st defendant initiated contempt of court proceedings before this Court against the officers concerned for having failed to obey the directions for refund of the amount shown in the order. Under pressure of such coercive steps, the plaintiff deposited the amount shown in the above decretal order, viz. Rupees One Lakh bonafide believing that the same was the correct amount without verifying the correctness of the amount claimed. 1st defendant withdrew the same on 1-12-1972 hurriedly without allowing the plaintiff to go through the order passed by the Supreme Court, which was subsequently found to contain a direction that the amount should be withdrawn only on furnishing security. The main prayer in the Original Petition was to quash G. O. (MS) No. 18/66/food dated 15-4-1966 and the prayer for refund of amounts paid by the petitioner was only consequential as is evident from the omission to specify the amounts paid and the general statement that the amount was to the tune of Rupees One Lakh. Because of this fact, plaintiff contested only the main prayer and bonafide believing that the consequential prayer for refund will be subjected to a further enquiry in case the main prayer was allowed, omitted to contest the correctness of the amount claimed to be refunded and consequently did not make any submission regarding that aspect in the counter statement filed in that behalf. It was under these circumstances that this Court allowed the main prayer quashing the order and directing refund of Rupees One Lakh contrary to the bonafide belief of the plaintiff. The statement of the 1st defendant in the Original petition that they had paid an amount to the tune of Rupees One Lakh as surcharge is false. The actual amount paid was only Rs. 26, 332. 50 and the above statement by the 1st defendant was false to their full knowledge and belief, and was a fraud played on the court and on the State with a view to making an illegal gain by obtaining a decree by misleading the court. Plaintiff came to know about the deception played by them in the said proceedings only on 12-10-1972. The plaintiff was compelled to deposit a sum of Rs. One Lakh and the amount was illegally and unauthorized withdrawn by the defendants. Therefore, the order of this Court for refund of excess amount of Rs. 73, 667. 50 is vitiated by fraud and misrepresentation and is not valid and that the plaintiff is entitled to the reliefs claimed in the suit.

(3.) IN these appeals, learned Advocate General has challenged the findings of the trial court. Learned advocate-general invited my attention to the following averments in paragraphs 3 and 4 of the plaint: "in the said petition, the 1st defendant willfully and wrongly stated that the amount paid by them to the Government as surcharge was "to the tune of Rs. 1, 25,000/ -. The amount was not specified at all. " XX XX XX The prayer for the refund of the amounts paid by the petitioner was only consequential as is indicated from the omission to specify the amounts paid and the general statement that the amount paid was only "to the Rupees One Lakh Twenty-five thousand. Because of this fact, the plaintiff contested only the main prayer and bonafide believing that the consequential prayer for refund will be subjected to a further enquiry in case the main prayer was allowed, omitted to contest the correctness of the amount claimed to be refunded and consequently did not make any submission regarding that in the counter statement filed in that behalf. Under the circumstances when the hon'hle High Court allowed the main prayer quashing the above g. O. MS. No. 18/66/food dated 15-4-1966 the consequential prayer for refund also followed automatically stating that the amount to be refunded is Rs. One lakh twenty five thousand contrary to the bonafide belief of the plaintiff. " As submitted by the learned Advocate General in other cases also, the averments on this aspect are of the same pattern. IN paragraph 5 of the plaint, it is stated that the statement of the 1st defendant that they had paid an amount to the tune of Rs. one lakh twenty five thousand as surcharge is false, that the actual amount paid by them is only Rs. 48,094. 50, that the above false statement by the defendant is false to their full knowledge and belief, that the said statement is a fraud played on the court and on the State, and the opposite party to the case and calculated to defraud Government amounts and thus make illegal gain by obtaining a decree by mis-leading the court. It is also alleged that the petitioners/ defendants suppressed truth, that the amount paid is only Rs. 48,094. 50 and misrepresented that the amount paid by them is to the tune of Rs. one lakh twenty thousand and thus managed to obtain a decree as regards that amount. It was further averred in the same paragraph that the plaintiff happened to deposit the amount as claimed by the 1st defendant before this court under circumstances as aforesaid and due to the fraud and deception played by him in the said proceedings and the plaintiff came to know about it only on 12-10-1972. It was averred that due to the fraud and deception played by the defendants on the plaintiff and on the High Court in the writ proceedings aforementioned, plaintiff was compelled to deposit a sum of Rs. 1,25,000/- which was illegally and unauthorized withdrawn by the defendants/and thus the order of the High Court in so for as it relates to the excess of rs. 76, 905. 50 is vitiated by fraud and misrepresentation and therefore not valid and binding on the plaintiff and the same is liable to be cancelled. IN paragraph 8 of the plaintiff, it is stated that the cause of action for the claim arose on 27-9-1971 when the decree was passed by this Court and on 1-12-1972 when the amount under the decree was withdrawn by the defendants and on 12-10-1972 when the fraud on the part of the defendants was known to the plaintiff and thereafter. Learned Advocate General also invited my attention to paragraph 7 of the written statement filed by the defendants, and pointed out that even here the defendant has not stated the exact amount paid and only averred that the allegation that the 1st defendant had deposited only a sum of rs. 48,904. 40 is not correct, that amounts had been deposited from time to time on different occasions over a period of about 6 years or more and that the plaintiff was at that distance of time only trying to take advantage of the fact that the defendants are not likely to be in a position to produce the old records and substantiate payments completely. Learned Advocate General submitted that the averment in the plaint that the defendants had not stated 'specified amount' has not been denied in the written statement. Reference also may be made to paragraph 8 of the written statement, where it is stated that if the administrative surcharge paid by the 1st defendant was only the amount mentioned in the plaint, it is inconceivable that the plaintiff with its elaborate resources for checking every payment made would have conceded as correct the 1st defendant's statement that the amount was "to the tune of Rs. 1,25,000/ -. " Learned advocate-general however submitted that even in the written statement defendants have not stated any 'specific amounts' and only repeated what they stated in the Original Petition that the amount was to the tune of Rs. 1,25,000a. Learned advocate-general further argued that since the amount claimed was not a specified amount and the amount claimed was not an issue agitated in the original petition, the direction contained in the judgment of this Court in the O. P. for refund of the specified amount would not operate as res judicata.