KURIEN Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) THE appellant was an abkari contractor in the year 1120 M. E. (1944-45) for vending " Coco brandy" in the newly opened arrack shop at Vaikom. THE Auction-list showing the confirmation of the privilege on the plaintiff by the Excise Commissioner is ext. I in the case. It contains an undertaking by the plaintiff to sell 43 gallons of the liquor every month and in default to pay damages equivalent to the commission and other dues to Government in respect of the short-fall in the monthly sales. THE acceptance of the plaintiff's bid by the Excise commissioner is in the following words: "confirmed in the name of P. P. Kurien (the plaintiff herein) at a commission of 211/2 Rs. per gallon on the undertaking that the present consumption of C. B. will be kept up and the bidder undertaking to keep it up by an earnest deposit amounting to the commission due on one month's average consumption (on the last 3 months ). This deposit will be independent of the 50 Rs. deposit under the sale notice. " THE plaintiff having failed to keep up the guaranteed sale and consequently the sale of the liquor in the shop having short-fallen 269 gallons in the year, the department took coercive steps, under the Revenue recovery Act, to realise damages amounting to Rs. Nine thousand odd, and realised Rs. 3500 -when the plaintiff instituted the present suit against the state for a declaration that the order to realise damages from him is illegal, for an injunction to restrain the State from proceeding further with the levy, and for recovery of the sum of Rs. 3500 - already realised. In defence thereto, the State claimed the entire levy to be lawful. THE Principal Subordinate Judge, alleppey, held the plaintiff bound by his undertaking in Ext. I, & therefore, dismissed the suit with costs. THE plaintiff has come up in appeal against the same.

(2.) WHEN the appeal was heard last week I felt suspicious of the legality of the undertaking that formed the basis of the suit and therefore adjourned the hearing to today for the Government Pleader to convince me of the same.

(3.) IN The Sales-tax officer, Benares v. Kanhaiya Lal Malcund Lal Saraf (AIR. 1959 SC. 135) where the respondent, under a mistake of law, paid sales tax on forward sales which were not liable to taxation and afterwards claimed refund thereof from the State, the Supreme court held: "the respondent committed the mistake in thinking that the moneys paid were due when in fact they were not due and that mistake on being established entitled it to recover the same back from the State under s. 72 of the INdian Contract Act. " IN the present case the amount was not tax, and was recovered by coercive proceedings. The duty to refund is therefore stronger here than in the case that was before the Supreme Court.