STATE OF KERALA Vs. THALAYAR TEA CO LTD

JUDGEMENT

(1.) My learned brothers Viswanatha Iyer and Kochu Thommen, JJ. differed on a point of law namely whether the suit is barred by limitation. Accordingly the case was adjourned for further hearing and decision as provided under Section 92 (2) proviso of the Code of Civil Procedure. The matter thus came up before me.

(2.) The respondent-plaintiff, the Talayar Tea Company succeeded to the interests of the Talliar Coffee Estates Limited on account of a scheme of amalgamation entered into between the two companies. The Talliar Coffee Estates Limited had instituted a suit O. S. 70 of 1966 in the Sub Court, Kottayam on 1-7-1976. That suit arose on account of the claim made by the State of Kerala for seigniorage in respect of silver oak trees in the Estate of the plaintiff in that suit. The case of the company was that no fee, duty or tax was payable in respect of timber of silver oak trees, that they are not reserved trees mentioned in the Timber Transit Rules and they are not royal trees on which seigniorage was payable. But the Government insisted upon payment of such seigniorage for cutting and removing the silver oak trees. Consequently the suit was filed with the following prayers:

(3.) The question that arose in the court below concerned the article of the Limitation Act applicable to the suit. Whether Article 24 of the Limitation Act, 1963 or 113 of that Act would be applicable to the suit was the main controversy in the suit. The residuary article 113 would apply only if Article 24 or any other article did not apply. The present suit was filed on 6-4-1973 within 3 years of the judgment of the High Court. According to the plaintiff cause of action arose on the date of such judgment and the suit within 3 years of that date was in time. But if the period of 3 years for filing the suit arose from the respective dates of payment by the plaintiff of seigniorage the claims falling beyond a period of 3 years prior to the institution of the suit would be barred by limitation. According to the State the suit was one for money had and received and was governed by Article 24 of the Limitation Act, 1963 corresponding to Article 62 of the earlier Limitation Act. If so the period in respect of each of the payments will commence on the respective dates on which seigniorage amounts were paid to the State. The contention of the plaintiff is that Article 24 will have no application since the right to sue accrued only when the High Court decided the suit in favour of the plaintiff in the earlier litigation. Though under Article 24 as well as Article 113 the period of limitation is 3 years the time from which time begins to run under the two articles is different.