Judgment LALIT MOHAN SHARMA, J. 1. By this writ application, the petitioner wants the High Court to direct the respondent No. 1, State of Bihar, and respondent No. 3, Commissioner of Excise, Government of Bihar, to pay to the petitioner a sum of Rs. 91,723.80 P. The question raised in the case relates to the maintainability and/or propriety of issuing such a writ. 2. The petitioner has been carrying on business of manufacturing medicinal preparation according to the "Ayurvedic system of medicine and it has been manufacturing one of the items known as Mrit Sanjivani Sura by the process of fermentation and distillation in accordance with the Ayurvedic system of medicine as prescribed in ancient and authoritative bookes on the subject. The article was subject to payment of excise duty under the Bihar and Orissa Excise Act, 1915. In 1955, the Parliament passed Medicinal and Toilet Preparations (Excise Duties) Act which came into effect on the 1st April, 1957. The rate of duty payable under this Central Act was considerably lower than that payable under the Bihar Excise Act, and the petitioner asserted that the duty on Mrit Sanjivani Sura was not thereafter payable under the Excise Act. Both the Central Government and the State Government insisted that the item was not a medicinal preparation attracting the Medicinal and Toilet Preparations (Excise Duties) Act and the duty was leviable under the State Excise Act. The petitioner filed an application under Article 32 of the Constitution of India before the Supreme Court, which was registered as W.P. No. 352 of 1961 and was allowed along with other similar applications by a common judgment dated 7th Sept., 1962. The judgment has been reported at page 622 of AIR 1963 SC. The State of Bihar had, in the meantime, collected the duty in accordance with the higher rate under the Bihar Excise Act, and the petitioner was asking for a refund of the excess amount so collected. The Supreme Court, however, did not grant any relief for refund and left the petitioner to take up the question with the State Government. The State of Bihar had, in the meantime, collected the duty in accordance with the higher rate under the Bihar Excise Act, and the petitioner was asking for a refund of the excess amount so collected. The Supreme Court, however, did not grant any relief for refund and left the petitioner to take up the question with the State Government. The operative portion of the judgment is in the following words :- (at p. 629) "We, therefore, allow the petitions and direct that these three medicinal preparations should not be taxed under the various Excise Acts in force in various States and can only be taxed in accordance with the provisions of the Medicinal and Toilet Preparations (Excise Duties) Act. We pass no order as to the claim for refund for that is a matter which the petitioners can take up with the State Governments concerned according, to law." According to the statement in para 11 of the present writ application, the excess sum collected by the State Government amounted to Rs. 91,723.80 and the petitioner moved the Excise Department of the State of Bihar by a letter dated the 17th Oct., 1962 addressed to the Minister of Excise, Bihar. As the request was not acceded to, the demand was reiterated and on 21-1-1963, a statement of accounts as included in Annexure 5 was also filed. It is further asserted that on the 25th Dee., 1963, a memorandum was submitted to the Chief Minister, Bihar and the demand was repeated to the Commissioner of Excise, Bihar by a letter dated 31-3-1964 (Annexure 6). Another letter (Annexure 7) was sent on 6-4-1964 and thereafter on 12-4-1969 a further letter (Annexure 8) was addressed to the Commissioner of Excise. The petitioner appended to the writ application as Annexure 9 a copy of the letter from the Commissioner of Excise dated 13-5-1969 addressed to the petitioner stating that no decision had been taken by the Government on the question and information would be sent after the matter was decided. The petitioner, thereafter, sent another letter as contained in Annexure 10 dated 28-10-1974 to the Commissioner of Excise, Bihar, and the Secretary to the Government of Bihar, Excise Department, reminding them to pass an order for refund in accordance with the judgment of the Supreme Court. The petitioner, thereafter, sent another letter as contained in Annexure 10 dated 28-10-1974 to the Commissioner of Excise, Bihar, and the Secretary to the Government of Bihar, Excise Department, reminding them to pass an order for refund in accordance with the judgment of the Supreme Court. In para 22 of the writ application, it was stated that the petitioner on 11-11-1974 learnt that its claim for refund had been rejected without assigning any reason and in the writ application the petitioner prayed for a writ in the nature of certiorari quashing the order of the State Government refusing to refund and issuing a direction for making payment. The application was admitted on 25-11-1974. The petitioner produced as Annexure 11 to a supplementary affidavit filed on 22-4-1975 a copy of the letter dated 7-12-1973 written by the Secretary to the Government to the petitioner rejecting the claim of refund. 3 The application has been resisted on behalf of the respondents 1 and 3, mainly on the grounds that in substance, the relief prayed for was for passing a money decree which can be done only in a regular suit in a civil court of ordinary jurisdiction and a writ petition is not maintainable, and the claim is barred by the rule of limitation. In a counter affidavit filed by the respondents, an attempt has been made to make out a case on merits also against the claim of refund but in the course of argument Mr. Md. Khaleel, learned Government Pleader, appearing for the respondents 1 and 3 did not advance any argument. He strenuously contended that a pure money claim cannot its granted by the High Court under its extraordinary jurisdiction under Arts. 225 and 227 of the Constitution of India specially when the application is filed so belatedly that a suit for that purpose would on the date of the filing of the writ application, have been barred by limitation. 4. Mr. T. K. Prasad, appearing for the petitioner, contended that the order as contained in Annexure 11 to the supplementary affidavit was wholly illegal being contrary to the decision of the Supreme Court in M. B. S. Oushadhalaya V/s. Union of India, AIR 1968 SC 622, and for the further reason that the grounds for rejection of the petitioners claim had not been indicated. It was argued that Annexure 11 should be quashed and, as consequence thereof, a direction for payment of the money should be given. Alternatively, it was submitted that even if the nature of Annexure 11 be considered such that at may not be quashed in writ jurisdication, a direction for payment of money simpliciter can be issued by the High Court. 5. It has been jointly stated by the learned Advocates of the parties that there are no provisions whatsoever in the Bihar Excise Act or the rules framed thereunder nor are there any statutory provisions anywhere else dealing with the refund of duty illegally collected and it has not been suggested on behalf of the petitioner that by refusing to make a refund or by writing a letter as contained in Annexure 11, the respondents have violated any statutory provision or neglected to perform any statutory duty. The steps by the petitioner in demanding refund have not been taken under any particular Act or rule and it appears that the nature of the demand is that made by an ordinary creditor from his debtor. The letter (Annexure 11) does not, to my mind, amount to an order passed in a statutory capacity. It is on a par with a letter refusing to accede to the demand of a creditor written by a debtor and is similar in nature to a letter rejecting the demand of a person serving a notice under S. 80 of the Civil P. C., before filing a suit. It cannot be suggested that after a demand in a notice under S. 80 of the Civil P. C. is rejected by the State, a writ can lie. I, therefore, hold that there is no question of quashing the letter as mentioned in Annexure 11 to the supplementary affidavit. 6. In substance, the sole relief asked for by the petitioner in the present case is for a writ of mandamus directing the State to refund the duty illegally collected and it has been establi-shed by the decision in Suganmal V/s. State of Madhya Pradesh, AIR 1965 SC 1740 , that such an application is not ordinarily maintainable for the simple reason that such a claim can always be made in a suit and in such a suit it is open to the State to raise all possible defences including a plea of limitation. Before the Supreme Court, reliance was placed by Mr. M. C. Setalvad appearing for the appellant on an earlier decision of the Supreme Court in the Commr. of Police, Bombay V/s. Gordhandas Bhanji, AIR 1952 SC 16 , in support of the contention that a writ could be issued for refund of money even if the petitioners right to refund did not arise, under any statutory law, but arose under any law. In that case, a writ was prayed under S. 45 of the Specific Relief Act. Distinguishing that case, the Supreme Court in Suganmal V/s. State of Madhya Pradesh (supra) pointed out that in the case of the Commr. of Police, Bombay V/s. Gordhandas Bhanji (supra), the duty to refund arose under statutory rules. The other decisions specifically stating that a mandamus for recovery of money could be issued only when the petitioner is entitled to recover that money under some statute were followed (See paragraph 13). It has been urged by the learned Government Pleader that a serious question of limitation would have arisen if the petitioner had filed a suit in Nov. 1974 as a period of more than three years elapsed between Annexures 7 and 8 and again between Annexures 9 and 10 and at no point of time an acknowledgment of liability was made by the respondents extending the period of limitation. Mr. T. K. Prasad submitted that the petitioner could produce some more letters before this court for the purpose of showing that the claim in Nov., 1974 was not barred by rule of limitation and that these letters were not filed with the writ application as the provision regarding limitation prescribed for suits did not apply to a writ application. I do not consider it necessary or advisable to go into the question of limitation, applicable to a suit if it had been filed by the petitioner in Nov. 1974 or if it is filed in future; but it must be said that the respondents can raise a serious question of limitation which can be appropriately decided in a suit. 7. Reliance was placed on the decisions in Burmah Construction Co. V/s. State of Orissa, AIR 1962 SC 1320 , Firm Mehtab Majid and Co. V/s. State of Madras, AIR 1963 SC 928 and State of Madhya Pradesh V/s. Bhailal Bhai, AIR 1964 SC 1006 , on behalf of the petitioner. 7. Reliance was placed on the decisions in Burmah Construction Co. V/s. State of Orissa, AIR 1962 SC 1320 , Firm Mehtab Majid and Co. V/s. State of Madras, AIR 1963 SC 928 and State of Madhya Pradesh V/s. Bhailal Bhai, AIR 1964 SC 1006 , on behalf of the petitioner. In the case of Burmah Construction Co. V/s. State of Orissa (supra) the writ application was filed before the Orissa High Court for, inter alia, declaring the provisions of the Orissa Sales Tax Act authorising imposition of Sales tax on certain turnovers as ultra vires and for quashing that assessment made by the authorities which resulted in illegal realisation of tax. As an ancillary relief, the petitioner in that case prayed for a direction on the State of Orissa to refund the illegally collected amount of sales tax. The writ application was allowed by the Orissa High Court, and a direction to refund the collected tax was also made subject to the rule of limitation mentioned in S. 14 of the Orissa Sales Tax Act. The first paragraph of the said S. 14 imposed an obligation upon the Collector to refund to the dealer any amount realised, but there was a restriction put in the proviso to the section by introducing a special period of limitation, which the High Court ruled, had to be respected. The decision was affirmed by the Supreme Court and it was pointed out that the petitioners application for refund was founded on the statutory duty to refund as mentioned in S. 14. The said decision of the Supreme Court cannot apply to the case before me for two reasons, namely, (i) that the claim for refund was made as a consequence to the other reliefs entertainable under writ jurisdiction and that the duty to refund arose under a statute. 8. In the case of Firm Mehtab Majid and Co. V/s. State of Madras, AIR 1963 SC 928 (supra) also a direction for refund of tax illegally collected was given by way of a consequential relief. 8. In the case of Firm Mehtab Majid and Co. V/s. State of Madras, AIR 1963 SC 928 (supra) also a direction for refund of tax illegally collected was given by way of a consequential relief. In the case of State of Madhya Pradesh V/s. Bhailal Bhai, AIR 1964 SC 1006 (supra), it was observed in para 16 of the judgment that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised without authority of law (the word consequential has been underlined by me) and in para 17 of the judgment it was further observed that Article 226 was not intended to supersede the modes of obtaining relief through a civil court or to deny defences legitimately open in such actions. The High Courts power under Article 226 of the Constitution is a discretionary one and specially so while issuing writs of mandamus; and due regard must be had in every case in relation to the facts and circumstances as to whether a relief for refund of money should be the subject matter of a regular suit in the civil court. I do not agree with the contention raised on behalf of the petitioner that since the Supreme Court while deciding W. P. 352 of 1961 ( AIR 1963 SC 622 ) left the question of refund for the petitioner to take up with the State Government, a writ must issue. If the matter were so plain, the Supreme Court would have itself directed in its judgment. The Supreme Court did not make any final pronouncement on that point which was left at large and it was open to the petitioner to file a suit "according to law." 9. On a consideration of all the relevant facts, I hold that the present writ application which, in essence, seeks to obtain a money decree simpliciter for the petitioner, cannot be allowed. My view gets support from a decision of this court in C.W.J.C. 387 of 1971 (Standard Refinery and Distillery Ltd. V/s. Union of India) disposed of on 13-12-1973. The petitioner may file a suit for the purpose in accordance with law and it will be open to the respondents in that event to raise any plea by way of defence including a question of limitation which may be validly open to them. The petitioner may file a suit for the purpose in accordance with law and it will be open to the respondents in that event to raise any plea by way of defence including a question of limitation which may be validly open to them. I would accordingly dismiss this writ application, but would direct the parties to bear their own costs. S.ALI AHMAD, J. 10 I agree.