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1967 DIGILAW 274 (KER)

CORPORATION OF TRIVANDRUM v. K. NARAYANA PILLAI

1967-11-17

K.K.MATHEW

body1967
Judgment :- 1. The Trivandrum Corporation, the plaintiff, has filed this second appeal from a decree in a suit for recovery of entertainments tax. The defendant in the case is the honorary Treasurer of the Travancore-Cochin Foot Ball Association. The Association was conducting the Santosh Trophy Tournament in Trivandrum from 17-1-1959 to 28-1-1959 and entertainments tax was due from the Association on that account. The amount alleged to be due by way of tax is Rs. 1318-60. 2. Both the lower courts held that under S 413 of the Trivandrum City Municipal Act, Act IV of 1116, read with S.8(1) of the Travancore-Cochin Local Authorities Entertainments Tax Act, Act VI of 1951, the period of limitation for the suit was three years, and the suit having been brought more than three years from 28-1-1959 was barred by limitation and dismissed it. 3. S.413 of Act IV 1116 reads as follows: "No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Corporation under this Act after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced as the case may be, in respect of such sum". S. 8 (1) of Act VI of 1951 reads as follows: "any amount due on account of the entertainments tax may be recovered by the local authority in the same manner as any tax payable to the local authority." S. 2 (7) of the Act defines "Local Authority" thus: "'Local Authority' means (a) in the city of Trivandrum, the Corporation of Trivandrum. XX X XII The argument of the courts below was that since S.8(1) of Act VI of 1951 pro-vided that any amount due on account of entertainments tax may be recovered by the local authority in the same manner as any tax payable to it under Act IV of 1116, S.413 of Act IV of 1116 would be attracted and the period of limitation for the suit is three years from the date when the tax became due. 4. 4. It was argued on behalf of the appellant that S.8 (1) of the Act VI of 1951 does not mean that the provisions of S.413 of Act IV of 1116 would apply for deciding the question of limitation for a suit to recover entertainments tax, but only that the manner in which the entertainments tax can be recovered is the same as that provided in Act IV of 1116. It was urged that the expression "in the same manner" occurring in S.8 (1) of Act VI of 1951 has reference only to the manner in which the tax may be recovered and has nothing to do with the time within which it may be recovered by a suit. Counsel referred to the ruling in Abraham v. Sales Tax Officer 1964 KLT. 21 (FB). In that case, the expression "in the prescribed manner" in S.8 (4) of the Sales Tax Act came up for consideration and the Court said: "The decision of the question depends on the construction of the expression "in the prescribed manner" in S.8 (4) of the Act. The words "in the manner" refer only to the mode in which the thing is to be done and do not introduce anything from the act referred to as to the thing which is to be done or the time for doing it. S.8 thus provided only that the manner of filing the declaration in Form C could be prescribed by the rules and not the time within which the same was to be filed. Non-compliance with the time prescribed by R.6 may entail other penalties but not forfeiture of the benefit conferred by the section." (see the head note). This view was upheld by the Supreme Court in Sales-Tax Officer, Ponkunnam v. K. I. Abaham C. A. No. 404 of 1966. Therefore, I think, the expression "in the same manner" occurring in S.8(1) has no reference to the time within which a suit for recovery of entertainments tax can be filed. I hold that the period of limitation prescribed in S.413 of Act IV of 1116 will not apply to the case. 5. Then, the question is what is the Article in the Limitation Act which would apply to a suit for recovery of entertainments tax. I hold that the period of limitation prescribed in S.413 of Act IV of 1116 will not apply to the case. 5. Then, the question is what is the Article in the Limitation Act which would apply to a suit for recovery of entertainments tax. In The Secretary of State for India in Council v. Guru Proshad Dhur ILR 20 Calcutta 51 at 57 the Calcutta High Court observed: "The Limitation Act does not prescribe any period of limitation for money due under a statutory liability to pay it, so the suit is, I think, within Art.120; in other words, the period of limitation is six years, which begin to run from the time when a demand for the money is made by persons who could give the receipts required by the section." 6. In Dip Narain v. Addl. District Magistrate, AIR. 1933 Patna 65 at 67 the Patna High Court held: "As regards the objection on the point of limitation, it appears that a suit under S.130, Bihar and Orissa Municipal Act, is governed by Art.120, Limitation Act, there being no other limitation provided for in the other articles of the schedule and the suits were brought within six years from the alleged accrual of the cause of action and as such were not barred by limitation II 7. In Masand Motiram v. Shikarpur Municipality, AIR. 1936 Sind. 184 the same view was taken, namely, that the period of limitation for a suit for recovery of tax due under a statute is that provided in Art.120 of the Limitation Act as there is no other article in the Limitation Act, which prescribes the period of limitation for such a suit. To the same effect is the decision in Ram-kumari Devi v. Hari Das AIR. 1952 Patna 239. 8. In Rajah of Vizianagaram v. Thammanna AIR. 1937 Madras 217 (FB.) at 218. The Madras High Court observed: The other question dealt with in the judgment of the District Munsiff is one of limitation. He has held the suits to be barred in respect of certain items on the footing that such a suit is governed by the three years' rule of limitation. We see no warrant for applying the three years rule. The suit is not one for rent nor is it based on any contract express or implied. It is to enforce a liability created by statute. We see no warrant for applying the three years rule. The suit is not one for rent nor is it based on any contract express or implied. It is to enforce a liability created by statute. In such a case the course of decisions in this Presidency has been to the effect that the suit will be governed by Art.120. In this view no portion of the suit claim will be barred by limitation" 9. I hold that Art.120 of the Limitation Act will apply to the suit and that the suit having been filed within six years of the accrual of the cause of action Was not barred by limitation. The decrees passed by the lower courts are set aside and the case is remanded to the trial court for a consideration of the other issues in the case and for passing the proper decree. 10. It was argued by Mr. N. R. K. Nair for the appellant that an application to implead the Foot Ball Association has been made in the trial court but that the application was dismissed, and therefore, even if a decree is passed in favour of the plaintiff-corporation that may not bind the Association and therefore this court should pass an order impleading the Foot Ball Association as an additional defendant. The Foot Ball Association is an un-incorporated body. I do not know how I can pass an order for impleading such an Association. In this case, it may be noted, only the honorary treasurer of the Association has been impleaded. Appellant's counsel submitted that as the rules of the Foot Ball Association provide that the Secretary of the Association can represent the Association in suits, it would be enough if the Secretary is impleaded in his capacity as Secretary, as a decree obtained with him on the party array would bind the Association, and therefore this court may direct the impleading of the Secretary of the Association. I am not sure whether by impleading the Secretary of the Association the appellant will be able to set a decree binding on the Foot Ball Association. Even if rules of the Association provide that the Secretary can represent the Association in suits by or against it, I do not know whether a decree obtained against the Secretary in his capacity as Secretary would bind the Association. Even if rules of the Association provide that the Secretary can represent the Association in suits by or against it, I do not know whether a decree obtained against the Secretary in his capacity as Secretary would bind the Association. The Secretary of a club or other association cannot sue alone in respect of a matter in which the Association is interested even if he is authorised so to do by a resolution of the members of the association. The suit must be brought by all the members of the association, or by the Secretary on his own behalf and on behalf of the other members under 0.1 R.B. (See Mohammadan Association v. Bakshi ( (1884) ILR. 6 Allahabad 284)). I think, the same would be the result if a suit is brought against the secretary as representing the Association. The trial court would consider any application that may be filed by the appellant for impleading the members of the Foot Ball Association or for resorting to the procedure prescribed in 0.1 R.8 oh its merits and pass the proper order. The decree of the courts below are set aside and the appeal is allowed and the case remanded to the trial court, but in the circumstances without any order so to costs. Allowed.