S. B. MAJMUDAR, J. ( 1 ) INTRODUCTORY facts: In order to appreciate the contours of controversy between the parties relevant introductory facts are required to be noted at the outset. The appellant in First Appeal No. 48 of 1974 is Dhrangadhra Municipality which is at present functioning under the Gujarat Municipalities Act but which was earlier a district Municipality under the Bombay District Municipal Act 1901 The respondent in the first appeal is Dhrangadhra Chemical Works. Dhrangadhra Municipality was the original defendant while Dhrangadhra Chemical Works was the original plaintiff in Civil Special jurisdiction suit No. 76 of 1963 which was filed in the Court of Civil Judge (S. D.) Surendranagar to recover Rs. 6 29 66 on the ground that the said amount was illegally retained and collected by the defendant Municipality from the plaintiff towards octroi. Special Civil Application No. 1729 of 1977 has been moved by the plaintiff directly in this Court against the State of Gujarat and defendant-Municipality challenging the vires of Gujarat Act 6 of 1978 viz. Dhrangadhra Municipality (Imposition of tax) Validation Act 1977 For the sake of convenience we shall refer to Dhrangadbra Municipality as the defendant and Dhrangadhra Chemical Works as the plaintiff in the later part of this judgment. ( 2 ) THE plaintiff alleged in its aforesaid suit that the defendant had no authority to levy or recover octroi from the plaintiff and that the action of the defendant in recovering and retaining octroi from the plaintiff was illegal and ultra vires. The plaintiffs case was that it is a company registered under the Indian Companies Act and is carrying on business of manufacturing Soda Ash and other Chemicals. For that purpose it is having its factory within the Municipal limits of defendant Municipality at Dhrangadhra town in Surendranagar District. That Bombay District Municipal Act 1901 was applied to the merged territories of Saurashtra from 1-7-1949 and the defendant Municipality has been constituted as District Municipality under the said Act from 1949. For that purpose it is having its factory within the Municipal limits of defendant Municipality at Dhrangadhra town in Surendranagar District. That Bombay District Municipal Act 1901 was applied to the merged territories of Saurashtra from 1-7-1949 and the defendant Municipality has been constituted as District Municipality under the said Act from 1949. It is the case of the plaintiff that by Ordinance dated 27-8-1949 published in the Saurashtra Government Gazette part I Sec. 1 the then Raj Pramukh had issued the Saurashtra Terminal Tax and Octroi Ordinance under the said Ordinance it was only the Government which can impose octroi in the cities and towns specified in Schedule I of the Ordinance Dhrangadhra town was one of the towns listed Octroi on the goods entering the limits of Dhrangadhra town can be levied by the State and not by the Municipality. The plaintiff raised various other contentions in the plaint for supporting its case that the defendant Municipality had no power to levy octroi on the goods brought by the plaintiff within the Municipal limits and therefore the said levy and collection of octroi were ultra vires the provisions of the Ordinance as well as Bombay District Municipal Act 1901 For the purpose of the present proceedings it is not necessary to refer to in details diverse contentions centering round the levy of octroi by the defendant Municipality from the plaintiff. As will be seen hereafter these proceedings can be disposed of on a short point which will become obvious from the discussion in the later part of this judgment. It appears that earlier the plaintiff had filed a writ petition being Special Civil Application No. 769 of 1962 in this Court against the defendant Municipality challenging the right of the defendant to recover octroi and that petition was dismissed by this Court. However the plaintiff preferred Appeal No. 1103 of 1967 in the Supreme Court that appeal came to be allowed by the Supreme Court decision whereof is reported in Dhrangadhra Chemical Works Ltd. v. State of Gujarat AIR 1973 SC 1041 . ( 3 ) IT is the further case of the plaintiff that earlier various amounts were paid as deposits under protest to the defendant and these deposits were ultimately appropriated towards octroi dues by the defendant Municipality on 27-9-1960. ( 3 ) IT is the further case of the plaintiff that earlier various amounts were paid as deposits under protest to the defendant and these deposits were ultimately appropriated towards octroi dues by the defendant Municipality on 27-9-1960. That various amounts appropriated by the defendant towards octroi dues as collected from the plaintiff totally amounted to Rs. 6 29 66 for the entire period from 1953 to 30 A decree for the said amount alongwith interest and cost was prayed for by the plaintiff against the defendant on the aforesaid grounds. ( 4 ) WHEN this appeal and the companies Special Civil Application reached final hearing before us Mr. Raval for the defendant vehemently contended that the suit as filed by the plaintiff does not disclose any cause of action and suffers from a fatal flaw and only on this short ground the suit is liable to be dismissed and the decree passed against the defendant is liable to be set aside. According to Mr. Raval the suit as filed by the plaintiff is based on the ground that the defendant had no authority to collect octroi dues from the plaintiff and various amounts realised by the defendant towards octroi were allegedly illegally realised and retained and these dues are liable to be refunded to the plaintiff. This suit therefore submitted Mr. Raval squarely falls if at all within the four corners of Sec. 72 of the Indian Contract Act. That the basic ingredients for succeeding in the suit under Sec. 72 of the said Act have to be pleaded and proved by the plaintiff and in the facts of the present case neither there is such pleading nor is there any proof offered by the plaintiff to entitle it to succeed under Sec. 72 of the Contract Act. Only on this short ground the suit is liable to fail. Mr. Raval further submitted that the plaintiff has never pleaded nor proved that because of the payment of the amount of octroi it had suffered any legal injury or prejudice and that it had not passed on the barden of amount of octroi paid by it to the consumers and that therefore the defendant would be unjustly enriched if the decree is not passed in favour of the plaintiff and on the other hand the plaintiff will suffer serious legal injury and prejudice if the suit is not decreed. That in absence of such pleadings and proof the suit as framed is liable to fail on the ground that it does not disclose any completed cause of action. In support of his aforesaid contention Mr. Raval heavily relied upon the three Division Bench judgments of this Court in (1) the case of Union of India v. Bharat Vijay Mills Co. Ltd. 25 (2) GLR 1111 (2) Union of India v. New India Industries Ltd. 24 GLR 1108 and (3) Union of India and Others v. Tata Chemicals Ltd. Jamnagar 1983 GLH 985 and also on a decision of the Supreme Court in State of M. P. v. Vyankatlal AIR 1985 SC 901 . ( 5 ) ON the other hand the learned Advocate for the plaintiff submitted that such contention was not raised by the defendant in its written statement nor was it canvassed before the trial Court. No issue was sought on this point and hence this contention should not be permitted to be raised for the first time in appeal. It was next contended that in any case this is a suit for refund of deposited amount and therefore it will not fall within the four corners of Sec. 72 of the Contract Act. That if at all it fall under Sec. 148 of the Indian Contract Act or Sec 70 of the Act and if that is so the legal requirements of pleading and proof so far as suit under Sec. 72 of the said Act are concerned would not apply to the facts of the present case. It was next contended that agreement Ex. 126 entered into between the parties pending the first litigation upto the Supreme Court cannot be of any avail to the defendant as the said agreement vas contrary to law and in any case the plaint can always show that despite this agreement entitling the Municipality to appropriate the then deposited amount over years towards its Octroi dues as the defendant was not entitled to recover Octroi. such appropriation was bad in law and therefore the deposited amount was required to be refunded to the depositor viz the plaintiff. such appropriation was bad in law and therefore the deposited amount was required to be refunded to the depositor viz the plaintiff. It was ultimately contended that decisions of the three Division Benches of this Court in the case of Bharat Vijay Mills (supra) New India Industries Ltd. (supra) and Tata Chemicals Ltd. (supra) were required to be considered in view of the fact that they were contrary to the decision of the other High Courts to which our attention was invited and to which we will make a detailed reference hereafter. Reliance was also placed on two decisions of the Supreme Court reported in the cases of Sales Tax Commissioner v. M/s. Auriaya Chamber of Commerce AIR 1986 SC 1556 and State of Kerala v. Aluminium Industries Ltd. 16 STC 689 it was submitted that the Division Bench judgments of this Court require reconsideration at least in the light of the aforesaid Supreme Court decisions. ( 6 ) WE shall now proceed to deal with the aforesaid controversy posed for our consideration in the present proceedings and the efficacy of the rival versions centering round this controversy. So far as the submission of the learned Advocate for the plaintiff that no plea was taken in the written statement by the defendant that the plaintiffs suit was not maintainable for non-compliance with the mandatory provisions of Sec. 72 of the Contract Act and that no such issue was raised or argument was canvassed before the trial Court is concerned it is true that this is so. However the plea which has been raised before us and which is squarely covered by the ratio of the three Division Bench judgments of this Court is a plea which goes to the root of the matter. It is a pure question of law centering round the maintainability of the suit and is based on the question whether the suit as framed discloses was completed cause of action or not. Such a plea which is to be answered in the light of the main averments in the plaint cannot be said to be one which raises any mixed question of law and/or fact. Such a plea which is to be answered in the light of the main averments in the plaint cannot be said to be one which raises any mixed question of law and/or fact. It raises a pure question of law and such plea about the maintainability of the suit therefore can obviously be raised at any stage of the proceedings even though it may not have been raised in the suit before the trial Court. If any authority were needed to buttress this position it is furnished by the decision of the Supreme Court in the case of State of Rajasthan v. Kalyan Singh AIR 1971 SC 2018 Hegde J. speaking for the Supreme Court in the aforesaid case held that plea of non-maintainability of suit is a legal plea and can be accepted although no specific plea was taken or precise issue framed. In this connection it is observed that the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable the fact that no specific pleas were taken or on precise issues were framed is of little consequence. The preliminary objection raised on behalf of the plaintiff in this connection has therefore to be rejected. ( 7 ) NOW turning to the merits of the contentions raised on behalf of the defendant about the maintainability of the suit it is necessary to look at the main averments in the plaint with a view to finding out the true nature and scope of the plaint. In paras 2 and 3 of the plaint history of the various legislations which were holding field in connection with the impost of octroi in that area has been traced. In para 4 it has been pointed out how the then Saurashtra Government purported to act under Sec. 4 of the Ordinance and framed rules for collection of octroi under the said Ordinance. In para 5 of the plaint it has been averred that under the provisions of the Bombay District Municipal Act 1901 the Government has no authority and the defendant Municipality cannot derive such authority directly from the Government for levying and collecting octroi as from the date the said Municipal Act. In para 5 of the plaint it has been averred that under the provisions of the Bombay District Municipal Act 1901 the Government has no authority and the defendant Municipality cannot derive such authority directly from the Government for levying and collecting octroi as from the date the said Municipal Act. Then follows para 6 which recites that from 1-7-1963 the rate of octroi on different goods which was raised by the defendant to 1 1/2 times was also without following the prescribed procedure and without complying with the necessary preliminaries under Chapter VII of the Bombay District Municipal Act. In para 7 it has been averred that the defendant had no right to amend the Schedule of rates and if the schedule of rates was purported to have been revised under Ordinance No. 47 of 1949 it could only be done by the Government and not by the Municipality. Having made these relevant averments which naturally impunged upon the power and authority of the defendant Municipality to colleet octroi dues from the plaintiff para 8 of the plaint is introduced and on which strong reliance was placed by the learned advocate for the plaintis for supporting his contention that this is not a suit for refund of octroi duty illegally collected but it is a suit for return of the deposit. Before we deal with that point it would be profitable therefore to extract the averments in para 8 in extense para 8 reads as under:"8. The plaintiff having realised the illegal nature of the octroi collected by the defendant had stopped payment thereof and had given the defendant a statutory notice dated 31/08/1962 in so far as the recovery of the alleged dues of Rs. 58 0 was concerned and thereafter since the defendant did not propose to refrain from taking any action during the period of statutory notice the plaintiff has to file petition under Art 225 of the Constitution against the defendant in the Gujarat High Court being Special C. A. No. 769 of 1962. The said petition however is confined to the prayer for quashing or setting aside the notice of demand of the defendant dated 16th September and restraining the defendant from recovering octroi dues and from levying and collecting octroi. It may be noted that upto 26-9-1950. The said petition however is confined to the prayer for quashing or setting aside the notice of demand of the defendant dated 16th September and restraining the defendant from recovering octroi dues and from levying and collecting octroi. It may be noted that upto 26-9-1950. the amount of octroi duty was only paid as a deposit and under protest and the amounts till then deposited by the plaintiff were appropriated by defendant illegally and wrongfully as octroi duty only on that date and the said amount as well as the further amounts recovered from the plaintiff illegally and wrongfully by the defendant as octroi duty to talling a sum of Rs. 6 29 65 ps. as on 30/09/1961 the defendant is ilable to pay back to the plaintiff. "after para 8 follows para 9 which relates to service of statutory notice to the President and Chief Officer of the Municipality on 25-11-1962 and then follows para 10 which is cause of action para. It is useful to reproduce para 10 fully. It read as under:" 10 That the cause of action for the suit has arisen on or about 27-9-1960 when the amounts deposited with the defendant Municipality were illegally and wrongfully appropriated by the defendant as octroi and on or about 25-11-1962 when the plaintiff gave the statutory notice to the defendant to Which the defendant has neither replied nor complied. "after these relevant paras in the plaint follows prayer clause which is also required to be extracted in extense as under :"the plaintiff therefore pays: (A) It be declared that the defendant have no authority to levy or recover octroi from the plaintiff and that the action of the defendand levying and collecting octroi is illegal void and ultra vires and a decree be made against defendant for Rs. 6 29 66 (Rupees six lacs twentynine thousand sixty six and ninety Seven Nps.) being the amount of octroi illegally collected by them from the plaintiff upto the period ending with 31-9-1961. (B) the recovery of the cost of the suit from the defendant. (C) any other relief that the Honourable Court deems fit be granted. 6 29 66 (Rupees six lacs twentynine thousand sixty six and ninety Seven Nps.) being the amount of octroi illegally collected by them from the plaintiff upto the period ending with 31-9-1961. (B) the recovery of the cost of the suit from the defendant. (C) any other relief that the Honourable Court deems fit be granted. ( 8 ) ON a combined reading of these relevant paras in the plaint no doubt is left in our mind that this suit is essentially a suit for refund of various octroi dues recovered by the defendant from the plaintiff and which according to the plaintiff have been illegally recovered and/or retained by the defendant-municipality. If any doubt was left it is set at rest by the express wordings of the prayer clause which seeks a declaration that the action of the defendant in levying and collecting octroi is illegal void and ultra vires and a consequential decree against defendant for Rs. 6 29 66 on the basis that this amount of octroi is illegally collected by the defendant from the plaintiff for the period ending 30-9-1960. These clear averments in the prayer clause leave no room for doubt that the plaintiff sought refund of octroi amount recovered by the defendant from the plaintiff over years as octroi dues which according to the plaintiff were illegally recovered. It is true as stated in para 8 of the plaint that it was the case of the plaintiff that upto 26-9-1960 the amount of octroi duty was paid as a deposit and under protest but all the same these amounts paid upto 26-9-1960 are never alleged to have been paid as deposits simpliciter as ordinarily depositer will deposit of his own free will the concerned amount refundable with interest or without interest by the depositee on demand by the depositer. The plaintiffs case appears to be one of paying various amounts upto 26-9-1960 on account towards octroi claim of the defendant but under protest. That is how the term `deposit has been used but that does not mean that it was a case of simpliciter voluntary deposit of money by a creditor with the debtor and which deposited amount is sought to be recalled by the creditor on demand. That is how the term `deposit has been used but that does not mean that it was a case of simpliciter voluntary deposit of money by a creditor with the debtor and which deposited amount is sought to be recalled by the creditor on demand. It is therefore impossible to agree with the contention of the learned Advocate for the plaintiff that this is a suit for return of the deposit filed by the creditor against the debtor. All the paras of the plaint read as a whole in the light of the clear cut averments in the prayer clause completely rule out such type of claim. There is not even a whisper in the entire plaint about the suit being for the refund of the deposited amount from the debtor-depositee to the creditor-depositer. We fail to appreciate how Sec. 148 of the Indian Contract Act comes to the assistance of the plaintiff. Section 148 of the Act occurs is Chapter IX and it deals with bailment. It recites that a bailment is the delivery of goods by one person to another for same purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailer. The person to whom they are delivered is called the bailee. On the express pleadings contained in various paras of the plaint to which we have made reference it must be stated that nowhere by a remotest implication case of return of bailed goods from the defendant is pleaded by the plaintiff. It is not the case of the plaintiff that is had bailed various amounts with the defendant even assuming that cash amount can be made subject matter of bailment and that it was done for a specific purpose which is now over and therefore bailer demands back bailed goods from the bailee. On the express language of the plaint and especially in the light of the prayer clause such case is totally ruled out. Reliance placed by the learned Advocate for the plaintiff on the decision of the Supreme Court in the case of Shanti Prasad v. Director of Enforcement AIR 1962 SC 1754 is also of no avail to the plaintiff. On the express language of the plaint and especially in the light of the prayer clause such case is totally ruled out. Reliance placed by the learned Advocate for the plaintiff on the decision of the Supreme Court in the case of Shanti Prasad v. Director of Enforcement AIR 1962 SC 1754 is also of no avail to the plaintiff. In that case the question before the constitutional bench of the Supreme Court was as to whether appellant Shanti Prasad before the Supreme Court could be said to have contravened provisions of Sec. 23 (1) (a) read with Sec. 23d of the Foreign Exchange Regulations Act 1947 on the ground that he had received some amount from certain German firm which had made entries in its account book in that connection. The Supreme Court noted the fact that the German firms had agreed to pay certain amounts to the appellant by way of final settlement of his claim for compensation in respect of certain contracts for supply of machinery from Germany. An account was opened in the name of the appellant in a bank in Germany and the amounts settled were credited to that account on certain conditions viz that the amounts were to be repaid only to the firms as price of new machineries to be supplied by them on production by the appellant of an import licence from Indian Government and the appellant was not to operate on it except for that purpose. In the background of these facts the Supreme Court held that the appellant had only a contingent right to the amounts standing in the credit to his account in the German bank and there was no debt due to him in presenti because the contingency on which his title to the amounts in deposit would arise viz. the grant of import licence by the Government of India was one the fulfilment of which was wholly beyond his control. In these circumstances the deposits were made in the bank not in the normal course of banking business but under a special arrangement which constituted the bank a bailee or a stakeholder and not a debtor or trustee. the grant of import licence by the Government of India was one the fulfilment of which was wholly beyond his control. In these circumstances the deposits were made in the bank not in the normal course of banking business but under a special arrangement which constituted the bank a bailee or a stakeholder and not a debtor or trustee. Consequently there was no lending of these amounts to the bank by the appellant within the meaning of Sec. 4 (1) of the Act and therefore the order imposing a fine on him under Sec. 23 (1) (a) was illegal. We fail to appreciate how the ratio of this decision can at all be pressed in service on the facts of the present case. It is not the case of the plaintiff that various amounts paid by it to the defendants over years and which were paid as deposit towards octroi dues of the defendant were paid under any contingency or that they were to be returned to the plaintiff as deposit amounts. On the contrary it is the case of the plaintiff that whatever might have been the historical background of the deposits on the octroi account till 26 atleast from that day onwards the entire amount which was standing in the account of the plaintiff was appropriated towards octroi dues and subsequently also the defendant went of charging octroi and the suit as filed was for refund of the entire amount on the ground that 4he defendant had no authority to appropriate this amount as octroi dues. The suit was filed on 9-4-1963. By that time admittedly as stated in the plaint the entire amount collected over years had got appropriated towards octroi dues and was credited in the books of the account of the defendant as octroi recovered from the plaintiff. It is that amount which is sought to be recovered from the defendant on the ground that the defendant had no power to-levy octroi during the relevant time. Consequently the suit as filed must necessarily be held to be one for refund of octroi amount retained and collected by the defendant from the plaintiff which according to the plaintiff the defendant had no right to recover and collect as octroi. In that view of the matter the decision of the Supreme Court in Shanti Prasad case (supra) cannot be of any avail to the plaintiff. In that view of the matter the decision of the Supreme Court in Shanti Prasad case (supra) cannot be of any avail to the plaintiff. ( 9 ) IT was next contended that in any case the suit may fall under Sec. 70 of the Contract Act. This contention also cannot be of any assistance to the learned advocate for the plaintiff for the simple reason that all that Sec. 70 enjoins is that where a person lawfully does anything for another person or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered. In order to bring the suit within the frame work of Sec. 70 the plaintiff must plead and prove if necessary that it had lawfully done something for the benefit of the defendant or had delivered anything to the defendant not intending to do so gratuitously and the other person had got the benefit thereof. Thus the plaintiff must voluntarily but not ex-gratia do something for the defendant and from the benefit thereof must be enjoyed by the defendant and in view of such a fact situation the defendant would become liable to make adequate compensation for the benefit received by him from the plaintiff. Such a quasi contract is spelt out from the provision of Sec. 70. But this is not a case in which the plaintiff even whispers that it had voluntarily and of its own free wi11 done something for the defendant meaning thereby it had paid various amounts to the defendant towards octroi duty voluntarily and out of its own sweet will. On the contrary on the express averment in para 8 of the plaint it becomes clear that the plaintiff had paid various amounts upto 26-9-1960 by way of octroi duty only as deposit under protest. If the amount is paid under protest it can never be urged that it was paid voluntarily and lawfully and that the other side having obtained benefit thereof must. pay compensation for the same. On the express language of Sec. 70 therefore the present suit cannot be said to be one contemplated by it. It is totally dehors the basic requirements of Sec. 70. pay compensation for the same. On the express language of Sec. 70 therefore the present suit cannot be said to be one contemplated by it. It is totally dehors the basic requirements of Sec. 70. Consequently it is not possible to agree with the submission of the learned Advocate for the plaintiff that this suit falls within Sec. 70 of the Act. As discussed earlier the comprehensive reading of the plaint leaves no room for doubt that this is a suit filed by the plaintiff for refund of Octroi amount paid by it under protest over a period of time to the defendant on the ground that the defendant hat no right to collect such Octroi dues from the plaintiff. It is a suit simpliciter for refund of Octroi amount allegedly illegally collected by the defendant from the plaintiff over a period of time. If this is so Sec. 72 of the Contract Act is the only legal foundation on which the suit can be rested it at all. See. 72 reads as under:" 72 A person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. " ( 10 ) A mere reading of this section shows that before the plaintiff can hope to succeed in such a suit it must be pleaded and then if necessary proved that the money has been paid by the plaintiff to the defendant under a mistake or coercion. Unless this pleading is put forward basic requirement of See. 72 would not he satisfied. It is nowhere pleaded in the plaint that either under a mistake or under coercion the plaintiff had paid various amounts to the defendant en account towards Octroi dues claimed by the defendant from the plaintiff for the relevant period. The learned Advocate for the plaintiff also did not make any effort to submit that any such case was pleaded much less proved but as we have indicated above his effort was to walk out of Sec. 72 and to bring the suit within the sweep of Sec. 70 or Sec. 148 of the Contract Act. The learned Advocate for the plaintiff also did not make any effort to submit that any such case was pleaded much less proved but as we have indicated above his effort was to walk out of Sec. 72 and to bring the suit within the sweep of Sec. 70 or Sec. 148 of the Contract Act. Once that effort is demonstrated to be abortive the conclusion is inevitable that the suit which otherwise falls under Sec. 72 does not disclose the basic ingredients of Sec. 72 for the purpose of completing the cause of action as required for such suit It must be kept in view that though Sec. 72 on its express language lays down the nature of the pleading and proof by the plaintiff about payment of money under mistake or coercion one additional requirement of this provision which lies embedded by necessary implication is that the plaintiff must be entitled in law to receive back from the defendant the amount of money or anything delivered by mistake or coercion. If the plaintiff has no legal right to receive that amount from the defendant then also the suit though under Sec. 72 may fail even if mistake or coercion underlying initial payment is pleaded and proved. It is now well settled by a series of decisions of the Supreme Court that mistake as contemplated by Sec. 72 is mutual mistake by both the sides viz. the plaintiff and defendant. No such case is obviously pleaded much less proved by the plaintiff. So far as the plaintiffs legal right to receive the amount from the defendant is concerned as we have discussed earlier though Sec. 72 by its express language does not indicate any such ingredients implicit in the said section in this requirement. In this connection it would be profitable to have a look at the commentary on Absons law of Contract 25 edition published in 1979 by Oxford University Press. We find in Chapter 21 thereof discussion about restitution. Relationship creating quasi-contracts wherein one party is bound to restitute to the other party in certain circumstances are discussed in that chapter. In this connection it would be profitable to have a look at the commentary on Absons law of Contract 25 edition published in 1979 by Oxford University Press. We find in Chapter 21 thereof discussion about restitution. Relationship creating quasi-contracts wherein one party is bound to restitute to the other party in certain circumstances are discussed in that chapter. It has been mentioned therein that circumstances must occur under any system of law in which it becomes necessary to hold one person to be accountable to another without any agreement on part of the former to be so accountable on the ground that otherwise he would be retaining money or some other benefit which has come into his hands to which the law regards the other person as better entitled or on the ground that without such accountability the other would unjustly suffer loss. The law of restitution exists to provide remedies in circumstances of this kind. It becomes obvious that Sec. 72 of the Contract Act is ipso facto based on the principle of restitution. So far as principle of restitution is concerned the principle of unjust enrichment of the defendant at the cost of the plaintiff entitling the plaintiff to get restitution through the Court process is highlighted at Page 649 of the above book where in the following observations are worthnothing:" The principle of unjust enrichment presupposes three things first that the defendant has been enriched by the receipt of a benefit. secondly that such encrichment has occurred at the expense of the plaintiff thirdly that would be unjust for the defendant to retain that benefit. There is no accepted classification of situations where a claim to restitution will arise on the ground of unjust enrichment. " ( 11 ) IT becomes therefore obvious that for basing claim against the defendant on the bed rock of quasi contract it has to be shown of necessity that the defendant has got enriched by receipt of the benefit from the plaintiff which it would be unjust to allow him to retain and that such enrichment must have occurred at the expense of the plaintiff. It has therefore to be shown that the plaintiff has better right to receive that amount or to be refunded that benefit meaning thereby but for that the plaintiff would suffer legal injury or prejudice. It has therefore to be shown that the plaintiff has better right to receive that amount or to be refunded that benefit meaning thereby but for that the plaintiff would suffer legal injury or prejudice. Similar observations are also found in the First Volume of Chitty on Contracts 25 edition Sweet and Maxwell 1983 In para topic of the principle of unjust enrichment is discussed. It has been stated in that connection:"the principal of unjust enrichment requires first that the defendant has been enriched by the receipt of a benefit. secondly that this enrichment is at the expense of the plaintiff and thirdly that the retention of the enrichment be unjust. " ( 12 ) IT therefore becomes necessary in an action based on quasicontract claiming restitution from the defendant to show that refusal of relief to the plaintiff would amount to unjust enrichment of the defendant and that too at the cost of the plaintiff meaning thereby that the plaintiff would suffer legal injury or prejudice if restitution is not granted. As we have already discussed above the thrust of Sec. 72 of the Act which also projects a type of quasi contract is that apart from the pleading and then later proving that the plaintiff had paid money or anything to the defendant under mistake or coercion the plaintiff must further plead and prove that he would suffer legal injury or prejudice if return of the amount is not ordered. Once on the construction of Sec. 72 this conclusion is reached it becomes obvious that when the plaintiff seeks to recover from the defendant tax amount on the ground that the tax was illegally collected of necessity it is to be pleaded and then proved that the amount was paid under a mistake or coercion and that if it is not returned or repaid the plaintiff would suffer legal injury or prejudice. It also becomes obvious that in cases where the plaintiff who has paid alleged illegal tax has himself not suffered the incidence thereof but has passed it on to the consumers he cannot legitimately contend that refusal of his request for restitution would result in any prejudice to him. ( 13 ) THIS is exiomatic because so far as the plaintiff is concerned even assuming that tax was illegally recovered from him he has paid the tax after collecting it from the consumers. ( 13 ) THIS is exiomatic because so far as the plaintiff is concerned even assuming that tax was illegally recovered from him he has paid the tax after collecting it from the consumers. So it is the consumer to whom tax is passed on who has really paid the tax through the hands of the plaintiff who is only a collection instrumentality. If ultimately it is found that tax is illegally recovered by the defendant then it should be back to the real tax payer and the real tax payer is not the plaintiff but the consumer who has borne the burden of the tax. It must logically follow that no collecting instrumentality can claim any refund of money because such intermediary is not out of pocket in any manner. The entire burden of tax rests on the shoulders of the real tax payer viz. the consumer. Under these circumstances when the tax is passed on to the consumer no case for any restitution to the intermediary would ever survive. Such intermediary swing as plaintiffs can never be permitted to go restitution from the defendants as for them it would be a windfall and unjust enrichment at the cost of the proper claimants for restitution namely the consumers real tax payer. In such cases the real plaintiffs should be those who have actually suffered the burden of tax. They would be the persons to whom restitution has to be made if at all and they would be the persons who would suffer legal injury if the restitution is denied and not the intermediaries like the traders and manufacturers who have merely passed on the burden of tax to the consumers and who themselves suffer no burden thereof. Consequently it must be held that for completing cause of action under Sec 72 of the Act the following three basic requirements of the Section have to be pleaded and then proved by the plaintiff against the defendant (i that the amount was paid under a mistake by the plaintiff to the defendant and that at the time of payment both the plaintiff as well as the defendant were labouring under mutual mistake meaning thereby the plaintiff thought that the amount was legally due by the plaintiff to the defendant. Defendant was also under the same impression but ultimately it is found out that it was not so; (ii) and/or the amount was paid by the plaintiff under coercion compulsion or pressure to the defendant; (iii) that if restitution is not granted to the plaintiff the plaintiff would suffer legal injury or prejudice. Implicit in the three ingredients will be the necessity for pleading in case of claims for refund of tax collected by the defendant from the plaintiff that the plaintiff has not passed on the burden of such tax to anybody else and that the entire burden of tax rested on the shoulders of the plaintiff and that had picked the pocket of the plaintiff wherein the tax burden had finally reposed. If such pleading is not put forward the three basic requirements of Sec. 72 would remain uncomplied with and the cause of action under Sec. 72 for filing such a suit would remain otiose incohate and incopel and such suit will have to be treated as a still born suit which would fail of its own as disclosing no completed cause of action. It is this grievance of the defendant based on the pleading of the plaintiff that has been put forward in the forefront by Mr. Raval for defeating the case of the plaintiff. As observed above in the light of the legal requirements of Sec. 72 relevant averments in the plaint as considered in details by us fall far short of the requirements of Sec. 72 and as these basic requirements are not pleaded there is absolutely no cause of action in favour of the plaintiff for maintaining the present suit and this suit must be held to be incompetent and disclosing no cause of action. In fact it was liable to be rejected under Order 7 Rule 11 C. P. C. which enjoins the Court to reject the plaint which does not disclose any cause of action. In the light of the averments found in the plaint therefore it must be held that it does not disclose any completed cause of action under Sec. 72 of the Act and therefore such a plaint was liable to be rejected at the threshold. In the light of the averments found in the plaint therefore it must be held that it does not disclose any completed cause of action under Sec. 72 of the Act and therefore such a plaint was liable to be rejected at the threshold. Merely because the trial had gone on and a decree came to be passed though partially in favour of the plaintiff it would not improve the situation for the plaintiff as the plaint which was inherently defective from its inception being a still born one has got to be rejected whenever it is brought to the Court notice of this at any stage of the proceedings that it was vitially defective at the time it was presented in Court. In this connection we may also profitably refer to a decision of the Supreme Court in Union of India v. Sita Ram AIR 1977 SC 329 . In that case the Supreme Court was concerned with the nature of pleadings in a suit under Sec. 70 of the Contract Act which also deals with a type of quasi contract. The Supreme Court considered as to what were the legal requirements of such a suit and what was required to be pleaded and proved and what would be the effect on the suit if such pleadings were not incorporated in the plaint. Ray C. J. in that connection observed as under:" The three ingredients to support the cause of action under Sec. 70 are these First the goods are to be delivered lawfully or anything has to be done for another person lawfully second the thing done or the goods delivered is so done or delivered not intending to do so gratuitously Third the person to whom the goods are delivered enjoys the benefit thereof. It is only when the three ingredients are pleaded in the plaint that a cause of action is constituted under Sec. 70 of the A ct. WHERE the plaintiff merely alleges that the goods were not supplied gratuitously since the other two essential features to Constitute a cause of action are lacking the Court commits an error in allowing the plaintiff to go to trial with a claim under Sec. 70" ( 14 ) THE aforesaid decision of the Supreme Court on parallel reasoning would squarely get attracted in connection with the nature of pleadings in a suit under Sec. 72. The basic requirements of Sec. 72 which contemplated another type of quasi contract and which is found in the same Chapter V of the Contract Act dealing with certain relations resembling those created by contract have therefore of necessity to be pleaded and proved by the plaintiff and in the absence of such pleadings no cause of action under Sec. 72 would remain complete and would not entitle such defective plaint to be processed further and to be tried. As we have already observed earlier basic requirements of Sec. 72 have not been pleaded much less proved by the plaintiff such a defective plaint makes the plaintiff liable to be non-suited. ( 15 ) IT is argued that Art. 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Therefore it is submitted that once it is shown that the imposition and/or levy of tax is illegal the amount collected by way of tax should be refunded to the person from whom it is collected. This argument requires a closer scrutiny. ( 16 ) WHEN direct tax like income tax wealth tax etc. is imposed the person who pays and from whom the amount of tax is collected before the burden of tax. While in case of indirect taxes which are in economic jargon called commodity taxes it is the individual who ultimately consumes the commodity that bears the burden of tax. The commodity carries the burden of tax with it. The person who collects the amount of tax and pays to the Government. or to appropriate authority happens to be at a particular stage where it is administratevely convenient to collect the amount of tax and pass it over to the Government. In case of excise duty the factory gate is ordinarily convenient stage where the amount of excise duty is levied. But it may be that in a given case excise duty may be levied even from consumer of the commodity. Coal Production Fund Ordinance 1944 provided for levy of excise duty from the consignee and not from the consignor or from the owner of the collieries. Even so the Supreme Court in the case of R. C. Jail v. Union of India AIR 1962 SC 1281 held that duty was that of excise and no other tax. Coal Production Fund Ordinance 1944 provided for levy of excise duty from the consignee and not from the consignor or from the owner of the collieries. Even so the Supreme Court in the case of R. C. Jail v. Union of India AIR 1962 SC 1281 held that duty was that of excise and no other tax. In case of customs duty at the time when the commodity enters into or goes out from the boundaries of the country the duty is levied. Similarly Octroi duty is levied when the commodity enters into the Octroi limits of the local authority concerned. In case of sales tax the tax is to be levied when the event of sale takes place. Thus it is an accident of administration that tax is collected at a particular stage. At whatever point of time or stage amount of commodity tax may be collected the burden of tax always remains on the commodity. No prudent businessman will bear the burden of this tax. Therefore majority of the persons who in reality pay and bear the burden of such commodity taxes are people like cart pullers cobblers rickshaw drivers blacksmiths hutment dwellers petty businessmen workers in farms and factories clerks and Gumastas working in offices or business firms. If properly examined it would be evident that even a beggar when he drinks a cup of coffee or puffs up a beedi after making payment from his meagre collections at the end of the day bears the burden of such commodity tax it is not the persons who collect the tax and pay the same to the appropriate authority that bear the burden. ( 17 ) EVEN in case of direct taxes for administrative Convenience suitable methods have been devised by which the persons to whom the income belongs does not pay the tax. But the person responsible for paying is required to deduct the amount of tax from the prescribed income and pay the same to the credit of the Central Government. This is clear if one refers to the provisions of Indian Income tax Act Sec. 192 to 194 (D ). The person responsible for paying collects the amount of tax and pays to the Government. But this person never bears the burden of tax. This is clear if one refers to the provisions of Indian Income tax Act Sec. 192 to 194 (D ). The person responsible for paying collects the amount of tax and pays to the Government. But this person never bears the burden of tax. Because the person responsible for paying does not bear the burden of the tax he can never claim the refund of the amount of tax even if it is held that the recovery of the tax was illegal or the same was on account of mistake of law. Such a claim can be made only by the person to whom the income belonged and from whose income the amount of tax was deducted at the source ( 18 ) HAVING regard to the aforesaid realities of commercial and economic world the question as regards the applicability of Art. 265 of the Constitution of India can be determined. It is trite knowledge to say that no provision of the constitution of India can be interpreted or implemented in isolation. Just as every statute is to be read as a whole the Constitution is also required to be read as a whole for correct interpretation and/or application of certain provision contained therein. Preamble to the Constitution of India indicates the basic ideal and object of the Constitution of India which is to establish an egalitarian society based on socialistic principles. Similarly the fundamental principles in the governance of the country require the State (the term State occurring in Art. 12 of the Constitution of India also includes Judiciary) to direct its policy towards securing the ownership and control of the material resources of the community to be distributed or as to subserve the common good in the best manner tart. 39-B ). Article 39a of the Constitution of India enjoins upon the State to secure that the operation of the legal system promotes justice a basis of equal opportunity. It also enjoins a duty upon the State to see that no citizen by reason of economic or other disabilities is denied justice. 39-B ). Article 39a of the Constitution of India enjoins upon the State to secure that the operation of the legal system promotes justice a basis of equal opportunity. It also enjoins a duty upon the State to see that no citizen by reason of economic or other disabilities is denied justice. ( 19 ) AFTER realising that in case of commodity tax ultimately the innumerable unidentifiable consumers bear the burden of tax and they are the real sufferers if the court passes an order of refund of the amount of such tax in favour of someone who does not suffer the burden of the tax the court would be acting against the basic ideal and object of the Constitution and also against the fundamental principles for governance of the country enshrined in the Constitution itself. Without having regard to the economic and commercial realities of life no order of refund of commodity tax can be legitimately passed by the court. To pass such an order of refurd in favour of the callecting instrumentality from whose hand the amount of tax has reached the coffers of the Government would amount to denying justice to innumerable unidentifiable citizens. Court cannot be oblivious of or indifferent to the interests of these people simply because they suffer by reason of economic and other disabilities and they are not able to assert their claims. Moreover grant of refund of such amount to collecting instrumentality would also amount to deprivation of property of millions of unidentifiable people otherwise than by authority of law. These people actually bear the burden of tax and it is their property which they are deprived of otherwise than in accordance with law. Therefore the Court cannot direct that someone else be paid the refund simply because the people whose property is unlawfully deprived are innumerable and unidentifiable and are not coming forward before the court. To do so would amount to nullifying the provisions of Art. 300a of the Constitution of India and also the provisions of preamble to the Constitution as well as the provision regarding directive principles. To do so would amount to nullifying the provisions of Art. 300a of the Constitution of India and also the provisions of preamble to the Constitution as well as the provision regarding directive principles. ( 20 ) THEREFORE the only way to resolve this conflict is that even in cases where the imposition and levy of indirect tax is held to be illegal the authority concerned may be recommended or directed by the Court to utilise the amount so collected in the best interest of the society at large instead of refunding it to persons unauthorised or ineligible to receive the same. . ( 21 ) IT is now time for us to have a look at the three decisions of the Division Bench of this court which had occasion to consider the nature of the case which the plaintiff seeking for refund of tax amount allegedly illegally collected by the defendant has to plead and prove. In the case of Tata Chemical Ltd. (supra) the Division Bench of this Court consisting of V. V. Bedarkar J. (as he then was) and one of us As P. Ravani J. had to consider the moot question whether the plaintiff Company which had filed the suit for recovery of amount of Rs. 1 2 46 701 on the ground that this amount representing excise duty was illegally collected from the plaintiff company was entitled to maintain such a suit. It becomes obvious that this was also a suit under Sec. 72 of the Indian Contract Act. Whether the plaintiff company which had by itself not borne the burden of tax but which had collected tax from the consumers could maintain such a suit and claim any decree from the department on the basis of allowed recovery of excise tax the following observations were made by Bedarkar J. speaking for the Division Bench in para 18 of the report:"now a word or two about the claim made by the plaintiff company in the suit. It is an admitted position that the plaintiff company has passed on the incidence of the tax to the consumer (See para 19 of the deposition of Harjivandas Exhibit 43 P. W. 1 ). The company claims refund of this amount of excise duty which is more than a crore of rupees on the ground that it paid the amount of excise duty in question under mistake of law. The company claims refund of this amount of excise duty which is more than a crore of rupees on the ground that it paid the amount of excise duty in question under mistake of law. According to the plaintiff company the mistake was discovered after the judgment of this Court in case of Almbic Glass Industries (supra) some time in January 1980 and hence the claim of refund for the duty as paid on the value of packing materials commencing from 1-10-1975 to 30 The plaintiff company reserved its right to claim such refund for the period subsequent thereto Admittedly the consumer has been made to suffer the heavy burden of about a little over a crores of rupees by way of excise duty. Which the consumer was made to pay should now be refunded to whom ? Not to the consumer but to the company ? Why ? Because it collected the same under mistake of law. What is the fault of the consumer and why is he made to suffer the burden of such a heavy duty ? We confess we are unaware of any judicial system which tolerates a situation wherein a consumer is allowed to be robbed and the intermediary who collected the tax is allowed to be benefited by a wind fall an unjust enrichment. One who sufferes injury is not awarded compensation but compensation is awarded to one who became an instrument is inflicting injury upon the consumer X (i. e.) the company which has collected the excise duty from the consumer) has not suffered the wrong but claims compensation for the wrong done to Y (i. e the consumer on whom the burden of excise duty is passed on ). The position in the foremost leading capitalist countries of the world that is England America and Australia is quite different. There a tax payer has no right to ask for the refund of the amount of tax paid under a mistake of law. This is understandable since the amount of tax collected is intended for the immediate expenditure for the common good. therefore it would be unjust and unfair to require the State to make its repayment after a number of years. This is understandable since the amount of tax collected is intended for the immediate expenditure for the common good. therefore it would be unjust and unfair to require the State to make its repayment after a number of years. " ( 22 ) IT is also interesting to reproduce what is stated in para 19 of the report in the light of the decision of the Supreme Court in S. P. Gupta v. Union of India AIR 1982 SC 149 : "in S. P. Gupta v. Union of India AIR 1982 Supreme Court 149 D. A. Desai J. in his separate judgment in para 735 inter alia said that a class which has benefitted enormously by this justice delivery system has come into existence and then rightly remarked both the judges and the lawyers failed to suitably revise the system in suit the needs of Republican form of Government and Egaliterian society with emphasis on socio-economic justice one wonders and poses a question as to whether the framers of the Constitution would have ever conceived even in their wildest possible imagination that in free India through the justice delivery system it should be possible for the fortunate few i. e. manufacturers) to commit a Mistake and for that mistake hard pressed middle class citizens and under privileged half and starving poor millions of the country should be made to suffer. Since that question does not arise in his case we do not propose to deal with the same in detail. " ( 23 ) IN the light of the aforesaid observations in that case the Division bench took the view that the appeal filed by the defendant Union of India representing excise department was required to maintained and the judgment and decree of the trial court granting restitution of various amount to the plaintiff Tata Chemicals were required to be set aside. It is true that in that case it has been found that it was an admitted position on the record of the case that burden of tax was passed on to the consumers. But in the present case the situation is much worse for the plaintiff. In this case the plaintiff never whisper even in the plaint that it had bring the burden of tax and not passed on the same to the consumers. But in the present case the situation is much worse for the plaintiff. In this case the plaintiff never whisper even in the plaint that it had bring the burden of tax and not passed on the same to the consumers. If the plaintiff does not plead such case there would arise no occasion for the defendant to meet such a case nor would there remain any need to frame an issue on the point. In fact such a question would not form part of any controversy between the parties frame any issue. It is further interesting to note that apart from the absence of pleading on this issue the plaintiff in the present case has led no evidence whatsoever and it is only the defendant which examined witnesses. The plaintiff had sat tight on its pleading and stacked its case only on that allegation the collection of octroi was illegal ant to prove only this case led documentary evidence The documentary evidence has revealed that from time to time various amounts were paid by the plaintiff to the defendant under protest as deposit towards octroi dues. The defendant had maintained separate account crediting various amounts received from the plaintiff as deposits 26 all these amounts standing in the deposit account were appropriated by the municipality towards octroi dues and the plaintiffs account was debited accordingly. It is therefore obvious that various amounts which the plaintiff might have paid over years under protest as deposits were admittedly towards alleged octroi dues of the defendant and the appropriation was also done by the diffident of the entire amount standing at the foot of the deposit account as octroi dues of the defendant. In this connection we may state that the plaintiff had produced entire bunch of documents showing various amounts remitted by the plaintiff to the defendant towards dues of the defendant though of course under protest over years to be kept as deposits with the defendants till the controversy between the parties which was pending before the Supreme Court was resolved. These documents are from exs. 177 to 296. They show various amounts remitted from time to time by the plaintiff to the defendant towards octroi dues. By way of a specimen we may refer to ex. 288 which shows that an amount of Rs. These documents are from exs. 177 to 296. They show various amounts remitted from time to time by the plaintiff to the defendant towards octroi dues. By way of a specimen we may refer to ex. 288 which shows that an amount of Rs. 4221-49 was sent by cheque by the plaintiff to the defendant in respect of demand of octroi dues from the plaintiff for the month of September 1956. It is seen that prior to 26-9-1960 the plaintiff used to send from time to time to the defendant various amounts by cheques towards octroi claim of the defendant. Merely because they were kept in a separate account it cannot be said that payments were not made towards octroi claim of the defendant. It is also interesting to note that neither before the trial Court nor before this Court even a faint suggestion was made that the entire burden of the amount paid by the plaintiff to the defendant towards alleged claim of octroi due; of the defendant over years was not passed on by the plaintiff which is a manufacturer to its customers and that the entire burden was suffered by the plaintiff alone. When such a case is not pleaded nor proved and when the plaintiff has not ventured to open its mouth even to remotely suggest such a possibility it must be held that this is a case in which the plaintiff cannot dare to suggest that it has not passed on the burden of octroi duty to the customers and that over years it had suffered the burden by itself. Consequently it must be held that in the present case the plaintiff has not suffered any incidence of tax meaning thereby it had passed it on wholehog to the customers and therefore what was the admitted position before the division bench in the case of Tata Chemicals (supra) remains an uncontroverted one in the present proceedings as the plaintiff has not tried to challenge that position at all. But even apart from that when the basic requirements of Sec. 72 are not pleaded by the plaintiff the suit of the plaintiff is liable to be rejected at the threshold as it has no completed cause of action. But even apart from that when the basic requirements of Sec. 72 are not pleaded by the plaintiff the suit of the plaintiff is liable to be rejected at the threshold as it has no completed cause of action. 26 The second decision of the Division Bench of this Court to which our attention was drawn by the learned Advocate for the defendant is rendered in the case of New India Industries (supra ). The very Division Bench which decided the case of Tata Chemicals Ltd. had once again to consider this question. The question before the Division Bench in 24 (2) GLR 1108 was as to whether the plaintiff New India Industries which had claimed refund of excise duty paid to the excise department by filling a suit under Sec. 72 of the Indian Contract Act was entitled to the same and whether the said suit could be decreed in absence of proper pleading and proof which were the basic requirements of Sec. 72 of the said Act. The Division Bench speaking through one of us A. P. Ravani J. squarely posed a question with which we are concerned in the present proceedings viz. whether the court can decree the suit under Sec. 72 when the plaintiff has not pleaded or proved any legal injury on account of the payment of alleged illegal tax when the burden of tax is passed on to the consumers and not borne by the plaintiff. In this connection it has been observed in para 31 of the report as under:"it is really difficult to conceive of any civilised system of law which would permit pick pocketing under the cover of law. Is put it plainly the questions which are posed and required to be answered are; Is our system of laws such that it renders the Court helpless and powerless and compels it to become an indifferent spectator to the fleeing of the pockets of the people ? Is put it plainly the questions which are posed and required to be answered are; Is our system of laws such that it renders the Court helpless and powerless and compels it to become an indifferent spectator to the fleeing of the pockets of the people ? Not only that does it further compel the Court to sanction and protect the imperceptible manner of pick pocketing of numerous unidentifiable consumers ?" ( 24 ) HAVING observed as aforesaid the Court proceeded to deal with the basic of requirements of Sec. 72 as found in Chapter V of the Contract act and observed as under:"in cases falling under this Chapter the basis of the obligation which may arise is not founded upon any contract or tort but upon a third category of law namely quasi-contract or restitution"english law on the subject was then discussed and having quoted observations in two such decisions it was observed:"from this it should be clear that the underlying object of Sec. 72 is that a person cannot retain the money of or some benefit derived from another which legitimately does not belong to him and which it would be unconscionable to allow him to retain the same. Therefore the basic idea is that here should be restitution of the money or the benefit derived on account of mistake or coercion and the person who has been deprived of the money or benefit should be restored the same and that there should not be unjust enrichment. "thereafter in para 36 it has been observed as under:"it is trite knowledge that the substantial position of the public revenue is recovered through indirect taxes The amount collected by the Central and State Government and even local authorities every year through indirect taxes run into several thousand crores of rupees The half clad half fed under privileged teeming millions of this country and the middle class citizens who are bard pressed an account of the continuous rise in cost of living index pay the taxes on the commodities and articles of day to day consumption not for purposes of being retained by the manufacturers and the businessmen nor do they pay the taxes so that the amounts once collected from them be refunded to the businessman en or the manufacturers in the event of the recovery of the tax being declared unlawful. In para 37 of the report it is observed as under: While resolving this question of prevention of unjust enrichment either that of State or that of manufacturers and/or businessmen this socio-economic perspeactive has got to be kept in mind by the Court. The Courts cannot be oblivious state the socio-economic consequence of its decision are cannot ignore the socioeconomic realities of the life of the nation. Judiciary is also an organ of the State machinery and therefore it has also to look at the provisions contained in Chapter IV of the Constitution. "under these circumstances it was held that the plaintiff company which had not shown that it had passed on the incidence of alleged illegal dues to the consumers was not entitled to claim restitution from the department and the claim for refund of tax could not be decreed. ( 25 ) THE same view has been further reiterated by another Division Bench of this court in the case of Bharat Vijay Mills (supra) Consisting of R. C. Mankad and A. S. Qureshi JJ In that case also the Division Bench speaking through R. C. Mankad J. had to consider the question whether the suit filed by the mill company demanding repayment of excise duty paid by them to the Union of India can be maintained when it was not shown that burden of tax was borne by the mill company and that burden was not passed on to the consumers. In this connection Sec. 72 of the Contract Act was considered by the Division Bench and it was observed that the term mistake has been used without any qualification or limitation whatever and comprises within its scope a mistake of law as well as a mistake of fact. It was further observed that the juristic basis of the obligation under Sec. 72 is not founded upon any contract or tort but upon a third category of law namely or restitution. The object with which Sec. 72 is enacted is on the one hand to prevent unjust enrichment of person to whom money is paid or thing delivered by mistake or under coercion and on the other to restore money or a thing to its real or proper owner. The object with which Sec. 72 is enacted is on the one hand to prevent unjust enrichment of person to whom money is paid or thing delivered by mistake or under coercion and on the other to restore money or a thing to its real or proper owner. In other words the object of Sec. 72 is restoration of money or thing to the real or proper owner of reparation of injury or making good any less which might have been occasioned to the person making payment or delivering thing on account of money or delivery of thing by mistake or under coercion. No one can be allowed to enrich himself unjustly at the cost or the expense of another. And it is with this object in view that Sec. 72 is enacted. The Division Bench then considered what would be the basic requirements of pleadings for supporting the case under Sec. 72 of the Act and made the following pertinent observations in this connection in para 18 of the report:"it was urged on behalf of some of the Mills that sometimes the manufacturer has to sell his goo ds at a price which may be less that the cost. In such cases burden of excise duty may not be passed on to the buyer or customer of the goods. It would. therefore rot be correct to say that in no case manufacturer would be entitled to refund of the excise duty We are not concerned with hypothetical cases. But in any case we are not suggesting that in no case manufacturer can receive the refund of excise duty. It would depend upon the facts of each case whether or not the manufacturer would be entitled to refund of excise duty. It is therefore that we have emphasised that in order to claim restitution the person claiming restitution has to prove loss or injury to him. If he proves loss or injury he would be entitled to restitution to the extent of loss or injury suffered by him. However it is absolutely essential to plead and prove loss or injury to successfully claim restitution under See. 72 of the Contract Act. In the case before us it is not disputed that burden of excise duty has been passed on to the buyers of the fabrics. However it is absolutely essential to plead and prove loss or injury to successfully claim restitution under See. 72 of the Contract Act. In the case before us it is not disputed that burden of excise duty has been passed on to the buyers of the fabrics. It is not the case of the Mills that they were required to sell fabric at a price less than its cost. No case of any loss or injury has been pleaded or proved by any of the Mills. The sale basis of the claim is that the excise duty which was not legally recoverable was paid on blended yarn and therefore they are entitled to refund of the excise duty paid by them. It is not the case of the Mills that any part of the burden of the excise duty was borne by them. In a given case it may be open to a manufacturer to himself claim refund of excise duty but such would be the case where either wholly or partly burden of excise duty has fallen on his shoulders. (emphasis supplied) ( 26 ) IT is in these circumstances that the Division Bench came to the conclusion that the plaintiff companies were not entitled to claim refund of the excise duty and the appeals of the Union of India were allowed and decrees granting restitution as passed by the trial Court were set aside. We may state that the ratio of the aforesaid decision gets directly attracted to the facts of the present case. Here also the plaintiff has not pleaded and proved that it has borne the entire burden of Octroi duty paid by it to the defendant over years. It has nowhere even whispered in the plaint that Octroi duty amount was not passed on to the consumers or the customers who had purchased the articles manufactured by the plaintiff It is obvious that as a prudent businessman the plaintiff which is a manufacturing concern would while fixing the price of its commodity take into account the Octroi duty paid on the raw material imported by it within the Municipal limit which would go into making of the finished manufactured product. It also cannot be disputed and it was rightly not disputed that Octroi duty paid on the raw material from which finished products are manufactured entered the cost structure of the plaintiffs finished products and that the same was shifted on to the purchasers of the plaintiffs products. It is easy to visualise that in normal circumstances this duly amount would naturally be passed on to the consumers by way of fixing of price charged from them. If there is any exception to this normal situation then it has to be expressly pleaded and then proved by the plaintiff who will be having special knowledge about it. The burden to prove this fact will be on the plaintiff under Sec. 106 of the Evidence Act. The plaintiff made no effort in that direction. Therefore it must take the consoquence of such stand on its part. The suit as filed by the plaintiff has therefore to be held to be disclosing no cause of action. ( 27 ) MR. Raval for the defendant in support of his contention also heavily leaned on two later decisions of the Supreme Court. In the case of State of M. P. v. Vyankatlal AIR 1985 SC 901 the Division Bench of the Supreme Court consisting of Murtaza Fazal Ali and R. B. Misra J. (as they then were) had to decide the question whether refund of sugar levy amounts can be legally claimed by the plaintiff in that case when the said mill had not suffered the burden of the levy but had passed on the same to the consumers. The trial Court had decreed the suit against the State of M P. Allowing the appeal by the defendant State of M. P. the Division Bench speaking through Misra J. made the following pertinent observations:" In the present case also the respondents had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and therefore they were not entitled to get a refund. Only the persons to whom lay the ultimate burden to pay the amount could be entitled to get a refund of the same. The burden of paying the amount in question was transferred by the respondents to the purchasers and therefore they were not entitled to get a refund. Only the persons to whom lay the ultimate burden to pay the amount could be entitled to get a refund of the same. The amount deposited towards the refund was to be utilised for the development of sugarcane of it is not possible to identify the persons on whom had the burden been placed for payment towards the fund the amount of the fund can be utilised by the Government for the purpose for which the fund was created namely development of sugarcane There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the fund. Being as would virtually amount to allow the respondents unjust enrichment. "though Sec. 72 is not expressly mentioned the aforesaid Supreme Court decision squarely rests on the principle underlying the restitution which in its turn is the foundation of Sec. 72. Therefore it must be held that before the plaintiff who claims refund of any amount paid to the defendant can succeed it must be shown by the plaintiff that the plaintiff itself had borne the entire burden of the payment and refusing such relief would amount to unjust enrichment of the defendant at the cost of the plaintiff. This reasoning of the Supreme Court in the aforesaid decision by necessary implication supports the ratio of the three Division Bench judgments of this Court puts beyond any pale of controversy the question passed for our consideration in the present proceedings. We must therefore held that in the present case the suit as filed by the plaintiff did not disclose any cause of action and was liable to be rejected and dismissed is the basic requirements of Sec. 72 are neither pleaded nor proved by the plaintiff. As the Supreme Court decision in State of M P. (supra) has taken the same view which was taken by the three Division Bench decisions of this Court there remains no occasion for us to consider the request of the learned Advocate for the plaintiff to refer this question to a larger bench of this Court. As the Supreme Court decision in State of M P. (supra) has taken the same view which was taken by the three Division Bench decisions of this Court there remains no occasion for us to consider the request of the learned Advocate for the plaintiff to refer this question to a larger bench of this Court. Even otherwise we respectfully concur with the ratio of the decisions of the three Division Bench of this Court (supra) and we do not entertain any doubt about the correctness of these decisions. ( 28 ) HOWEVER a valiant effort was made by the learned Advocate for the plaintiff to salvage the situation by submitting that various other High Courts have taken contrary view and that even the Supreme Court in some decisions had spoken on the point which clearly indicated that the decisions of this Court were required to be reconsidered. We will briefly refer to the said decisions of other High Courts as well as the Supreme Court with a view to indicating that the ratio of the decisions of the Division Bench of this Court are in no way in conflict with any of the decisions of the Supreme Court and the contrary view expressed by other High Courts on the point with respect cannot be accepted. ( 29 ) WE may first refer to the two Supreme Court decisions on which great store was laid by the learned Advocate for the plaintiff. We must at the out set state that the decisions of the Supreme Court on which reliance was placed by the learned Advocate for the plaintiff to draw a line of dissent from the ratio of the three Division Bench decisions of this Court have already been considered by two of the Division Bench decisions of this Court in the cases of New India Industries and Bharat Vijay Mills Ltd. (supra) and these Supreme Court decisions have been explained and distinguished. We respectfully concur with the said approach of the two Division Benches of this Court and we sec no reason to take a contrary view. However we may deal with the Supreme Court decisions of our own as the learned Advocate for the plaintiff vehemently contended that these decisions have definitely spoken on the point in a contrary tens. We respectfully concur with the said approach of the two Division Benches of this Court and we sec no reason to take a contrary view. However we may deal with the Supreme Court decisions of our own as the learned Advocate for the plaintiff vehemently contended that these decisions have definitely spoken on the point in a contrary tens. Reliance is placed by the learned Advocate for the plaintiff on the decision of the Supreme Court in the case of Sales tax Officer v. Kanahaiya Lal AIR 1959 SC 135 and on the decision of the Supreme Court in the case of D. Cawasji and Company v. State of Mysore and Another AIR 1975 SC 813 . Before discussing the aforesaid two decisions of the Supreme Court it would the proper to have a look at the judgment of the Supreme Court in the case of Dalbir Singh and Others v. State Punjab AIR 1979 SC 1384 wherein guidelines are provided as to how the judgment of the Supreme Court be read understood and applied. In this decision Sen. J. has observed as follows:"according to the well settled theory of precedents every decision contains three basic ingredients; (I) finding of material facts direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts; (II) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of (i) and (ii) above. For the purpose of the parties themselves and their privies ingredient No. (III) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that stops the parties from reopening the dispute. However for the purposes of the doctrine of precedents. ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi. It is not every thing said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the ease is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. "the aforesaid observations have been adopted by a Full Bench of this Court in the case of Ahmedabad Mfg. The only thing in a Judges decision binding a party is the principle upon which the ease is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. "the aforesaid observations have been adopted by a Full Bench of this Court in the case of Ahmedabad Mfg. and Calico Printing Company Ltd. v. Union of India and Others J983 (1) GLR I. After referring to the aforesaid decision of the Supreme Court and other two decisions of the Supreme Court (in the case of Madhav Rao Scindia v. Union of India AIR 1971 SC 530 and in the case of A. D. M. Jabalpur v. S. Shnkla AIR 1976 SC 1207 ) the Full Bench has observed that the Court must of necessity examine the precise question or the precise issue which arose before the Court and identify the principle of law applied by the Court in resolving the issue and make further effort to find out what is the proposition of law which emerges from the decision of the Court. Recently in the case of Ambica Quarry Works v. State of Gujarat AIR 1987 SC 1073 : (1987 (1) GLR 274 (SC)) the Supreme Court has observed as under:"the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only on authority for what actual decides and not what logically follows from it. (See Lord Halsbury in Union v. Leathem 1901 AC 495 ). " ( 30 ) IN the light of the aforesaid discussion and observations made by the Supreme Court itself the decision in the case of Kanahaiya Lal (supra) and D. Cawasji and Company (supra) are required to be read and understand. In the case of Kanahaiya Lal (supra) the precise question which arose before the Supreme Court is referred to in paras 5 and 7 of the judgment. The question before the Supreme Court was as to whether Sec. 72 of the Indian Contract Act applies to the facts and circumstances of the case and as to whether the term mistake occurring in Sec. 72 of the Contract Act covered mistake of facts as well as mistake of law also. The question before the Supreme Court was as to whether Sec. 72 of the Indian Contract Act applies to the facts and circumstances of the case and as to whether the term mistake occurring in Sec. 72 of the Contract Act covered mistake of facts as well as mistake of law also. In para 24 of the judgment the Supreme Court answered the question and held that the word mistake occurring in Sec. 72 of the Indian Contract Act was wide enough to cover not only a mistake of fact but also a mistake of law. in that case before the Supreme Court the question never arose as to what were the ingredients required to be proved before the claim based under the provisions of Sec. 72 of the Act can be said to have been established. In view of the Full Bench decision of this court and various decisions of the Supreme Court referred to here in above nothing more can be read. In the decisions of the Supreme Court in the case of Kanahaiya Lal (supra) except the correct meaning of the term mistake occurring in Sec. 72 of the Indian Contract Act. The Supreme Court has laid down the principles of law that the term mistake occurring in Sec. 72 of the Indian Contract Act takes within its sweep mistake of facts as well as mistake of law. To read anything more in this decision would be doing something which is not permitted by the Supreme Court itself. This conclusion of ours becomes apparent when we have a close look at this judgment of the Constitution Bench of the Supreme Court in; Sales Tax Officer v. Kanahaiya Lal AIR 1959 SC 135 (supra ). The limited question before the Supreme court in that case was as to whether the suit for refund of sales-tax allegedly illegally collected from the plaintiff by the defendant was maintainable. The limited question before the Supreme court in that case was as to whether the suit for refund of sales-tax allegedly illegally collected from the plaintiff by the defendant was maintainable. Analysing Sec. 72 of the Contract Act N. H. Bhagwati J. (as he then was) speaking for the Supreme Court made the following observations:"where it is once established that the payment even though it be of a tax has been made by the party laboring under a mistake of law the party is entitled to recover the same and the party receiving the same in bound to repay or return it No distinction can be made in respect of a tax liability and any other liability on a plain reading of the terms of Sec 72 of the Contract Act To bold that tax paid by mistake of law cannot be recovered under Sec. 72 will be not to interest the law but to make a law by adding some such words as otherwise than by way of taxes after the word paid. "it was further observed:"merely because the State has not retained the monies paid as Sales Tax by the assessee but has spent them away in the ordinary course of the business of the State will not make any difference to the position and under the plain terms of See. 72 of the Contract Act the assessee will be entitled to recover back the monies paid by it to the State under mistake of law. "it becomes at once clear that the Constitution Bench was concerned with only one ingredient of Sec. 72 viz. payment of tax under mistake of law taxing authority contended that the term mistake as employed by Sec. 72 will not include mistake of law. It is this contention which was examined by the Supreme Count and repelled and it was roled that term mistake as employed by Sec. 72 includes not only mistake of fact but also mistake of law. It is interesting to note that the decision of the Supreme Court was not invited on the further question as to whether the plaintiff in a suit under Sec. 72 was entitled to succeed even though he had not suffered any prejudice or legal injury. As that contention was not canvassed it obviously was not considered nor was it decided. It is interesting to note that the decision of the Supreme Court was not invited on the further question as to whether the plaintiff in a suit under Sec. 72 was entitled to succeed even though he had not suffered any prejudice or legal injury. As that contention was not canvassed it obviously was not considered nor was it decided. It is trite to say that the ratio of decision is to be culled out from what is actually considered and what is pronounced upon by the Court. When a point is never canvassed before the Court it can never be assumed that the Court had spoken on it though it was never canvassed before it. The Constitution Bench decision therefore is not an authority for the proposition that even though in a suit under Sec. 72 the plaintiff does not plead and prove that he has suffered any legal injury or prejudice his suit can be decreed and restitution can be granted to him. As such a question was never canvassed for consideration before the Supreme Court the aforesaid decision cannot be of any avail to the plaintiff for supporting its contention that in the absence of any pleading and proof alto such a suit can be decreed and such is the ratio of the decision of the Constitutional Bench of the Supreme Court. In our view there is no such ratio of the Constitutional Bench decision of the Supreme Court. It is interesting to note that on the point with which we are concerned there is a direct decision of the Supreme Court in the case of State of M. P. v. Vyankatlal AIR 1985 SC 901 (supra) where it has been held that unless the plaintiff shows that non-granting of refund of duty would amount to unjust enrichment to the defendant the suit cannot be decreed. That decision has also considered the Constitutional Bench decision of the Supreme Court in AIR 1959 SC 135 . In that view of the matter it would not be open to the plaintiff to contend before as that AIR 1959 SC 135 takes a view which is in favour of the plaintiff an the facts of this case. ( 31 ) OUR attention was then invited to the decision of a two member bench of the Supreme Court in the case of D. Cawasji and Co. ( 31 ) OUR attention was then invited to the decision of a two member bench of the Supreme Court in the case of D. Cawasji and Co. v State of Mysore AIR 1975 SC 813 . In that case a writ petition was moved in the High Court of Mysore tender Art. 226 by D. Cawasji and Co. and others for a declaration that the Mysore Elementary Education Act 1941 and the amendments to it by the Mysore Elementary Education (Amendment) Act (XII of 1955) providing for levy and collection of Education Case on items on which education cess wag being levied as prescribed in the Schedules of the respective Acts were beyond the competence of the Mysore State legislature and for refund of the educational cess paid during 1951-52 to 1955-56 on shop rentals and tree tax in respect of arrack and special liquor. The High Court of Mysore had dismissed the writ petitions by a common judgment. That gave rise to further appeals before the Supreme Court which came up for final hearing before the bench of K. K. Mathew and A. Alagiriswami JJ. (as they then were ). It becomes clear that the Supreme Court in that decision was not concerned with maintainability of a Civil Suit under Sec. 72 of the Contract Act nor was it concerned with further inquiry as to what would be the basic requirements for such a suit a which would entitle the plaintiff to succeed. The only contention canvassed before the Supreme Court was whether the High Court of Mysore W35 justified in rejecting the claim of refund on the ground that there was delay in filing the writ petitions. In para 4 of the report this point is referred to and this is the only point which was to be decided by the Supreme Court This point was considered by the Supreme Court and in that connection in para 8 of the report Mathew J. Observed:"therefore where a suit will lie to receiver moneys paid under a mistake of law a writ petition for refund of tax within the period of limitation prescribed I within 3 years of the knowledge of the mistake would also lie. " ( 32 ) THUS the short question about maintainability of the legal proceedings for refund of tax within permissible time limit and the further question whether there was any undue delay on the part of the writ petitioners in putting forward their claims were the only questions which were examined by the Supreme Court. It was Observed in para 8:"if any writ petition is filed beyond three years after that date will almost always be proper for the Court to consider that it is no reasonable to entertain that petition though even in cases where it is filed within three years the Court has a discretion. having regard to the facts and circumstances of each case not to entertain the application. " ( 33 ) THEN follows the observations in paras 9 and 10 on which great reliance was placed by the learned Advocate for the plaintiff. We therefore deem it fit to extract the entire paras 9 and 10 of the report:"9. are aware that the result of this view would be to erable a person to recover the amount paid as tax even after several years of the date of payment if some other party would successfully challenge the validity of the law under which the payment was made and if only a suit or writ petition is filed for refund by the person within three years from the date of declaration of the invalidity of the law. That might both be inexpedient and unjust so far the state is concerned. 10 tax is intended for immediate expenditure for the common good and it should be unjust to require its repayment after it has been in whole or in part expended which would often be the case if the suit or application could be brought at any time within three years of a Court declaring the law under which it was paid to be invalid be it a hundred years after the date of payment. Nor is there any provision under which the Court could deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting legibility of Intention to refund it to them or for any reason it is impracticable to do so. "observations in the underlined portion in para 10 were strongly relied upon by the learned Advocate for the plaintiff. "observations in the underlined portion in para 10 were strongly relied upon by the learned Advocate for the plaintiff. Now it must be kept in view that the aforesaid observations were made by Mathew J. while considering the question of undue delay in filing writ petition for refund of tax. In that decision the Supreme Court was never posed the question whether under Sec. 72 the plaintiff can straight way be given refund of tax even if the plaintiff has passed on the burden of tax to the consumers and has not suffered any burden thereof and whether it would amount to unjust enrichment of the defendant at the cost of the plaintiff if such a suit is not decreed. The underlined observations in para 10 therefore cannot be considered to be laying down any ratio on this point nor can they be considered to be even obiter observations on the point because that point was not even indirectly or remotely considered by the Supreme Court even though it directly did not arise for consideration. Consequently it must be held that the questions of maintainability of the suit under Sec. 72 of the Contract Act by the plaintiff for refund of tax illegally alleged to have been recovered from the plaintiff and the requirements of pleadings and proof in such cases were not adjudicated upon by the Supreme Court in D. Cawasjis ease (supra) directly or even indirectly. Therefore that decision is not of any avail to the plaintiff. In fact as seen earlier there is a direct decision of the two member Beach of the Supreme Court in the case of State of M. P. v. Vyankatlal (supra) which surely pronounces upon the question of maintainability of the said suit. But even assuming that there are any obiter observations on the point in D. Cawasjis ease (supra) if there is any conflict between the obiter observations of 2 member Bench of the Supreme Court in D. Cawasjis case (supra) and the direct ratio of the decision of the bench of equal strength in State of AI. P. v. Vyankatlal (supra) the ratio of the later decision has to prevail and will remain binding under Art. 141 of the Constitution of India. P. v. Vyankatlal (supra) the ratio of the later decision has to prevail and will remain binding under Art. 141 of the Constitution of India. ( 34 ) AS see in above in the case of D. Cawasji and Company (supra) the controversy between the parties was with regard to the period of limitation within which the petition under Art. 226 of the Constitution of India should have been filed After referring to the provisions of Sec. 17 (1) of the Limitation Act 1963 the Supreme Court has observed in para 8 of the judgment to the effect that a writ petition for refund of the tax within the period of limitation prescribed that is three years from the date of the knowledge of the mistake would also lie. The Supreme Court also observed that if any writ petition is filed beyond appeared of three years it would always be proper for the Court to consider that it is unreasonable to entertain that petition though even in cases where it is filed within three years the Court has a discretion having regard to the facts and circumstances of each case not to entertain the petition. ( 35 ) THEREAFTER what is observed in paragraphs 9 11 11 and 12 of the judgment was with a view to focussing the attention of the legislature to the present defective state of law in the country. What is stated and observed in these paragraphs did not pertain to the actual controversy before the Court and he same cannot be said to be the principle of law laid down by the Supreme Court. It must therefore be held that in that case the Superior Court has laid down the principles as regards the period of limitation within which a petition under Art. 226 of the Constitution of India for refund should be filed. Other observations made by the Supreme Court do not form part of the ratio of the judgment. ( 36 ) WE may now turn to the other decisions of the Supreme Court on which reliance was placed by the learned Advocate for the plaintiff In the case of Sales tax Commissioner v. M/s. Auriya Chamber of Commerce AIR 1986 SC 1556 . A Division Bench of the Supreme Court consisting of Sabyasachi Mukharji and K. N. Sings JJ. A Division Bench of the Supreme Court consisting of Sabyasachi Mukharji and K. N. Sings JJ. had to examine the question whether application moved for refund of sales-tax paid under mistake was maintainable before the sales-tax officer and whether such application can be rejected on the ground of limitation. It is this limited question which was examined by the Supreme Court. It becomes at once clear that it was the case of refund by statutory authority under the hierarchy described by the Act. It was held that when the judgment declaring provisions of the Act ultra vires came to be known in 1954 the assessee who had moved an application in 1955 cannot be said to have filed the application beyond time. We fail to appreciate how this decision can at all be pressed in service in support of plaintiffs case. It is not an authority for proposition that suit for refund of tax illegally recovered by the diffident can be maintained under Sec 72 of the Act dehors its basic ingredients and without even pleading them and proving the same. In para 23 of the report Sec. 2 of the Act has been referred to. Mukhraji J. has considered Sec. 72 of the Act and has observed in that connection as under:"sec. 72 of the Indian Contract Act. 1872 recognised that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. In this case it is not disputed that mistake of law is also a mistake covered by the provisions of Sec. 72 of the Indian contract Act. If the law declared by this Court in Budh Prakash Jai Prakashs case AIR 1954 SC 459 (supra) is correct as it must be then the payment of tax by the dealer the respondent herein was under a mistake of law and realisation by the revenue authorities was also under a mistake. Therefore such sum should be refunded This is recognised in the provisions of the Act as we have noted before. The principle of sec 7z of the Indian Contract Act has been recognised. " ( 37 ) IT is obvious that the liability of the authorities who might have collected tax under a mistake of law to refund the same has been found to be flowing from Sec7. 72. The principle of sec 7z of the Indian Contract Act has been recognised. " ( 37 ) IT is obvious that the liability of the authorities who might have collected tax under a mistake of law to refund the same has been found to be flowing from Sec7. 72. But the further question whether the dealer who was claiming such refund under Sec. 72 can maintain his claim without pleading and proving further ingredients of Sec. 72 viz. that he had suffered legal injury and prejudice and had borne the burden of tax which entitled him to claim refund from the authorities was never canvassed before the Supreme Court for consideration nor was it in fact considered by the Supreme Court. The Supreme Court in the aforesaid decision only considered one aspect under Sec. 72 viz. liability of the authorities who have collected tax to refund the same but the question as to whom it should be refunded and who are the persons who will be entitled to such refund was never posed for consideration before the Supreme Court and therefore the Supreme Court had no occasion to pronounce upon the same. In fact it was assumed that the dealer was entitled to such refund. No contention was raised on this aspect. Consequently even that decision cannot be of any avail to the plaintiff. The decision of the Supreme Court in the case of State of Kerala v. Alluminium Industries Ltd. 16 STC 689 also is of no avail to the plaintiff for the simple reason that as observed by the Supreme Court in the case of Sales tax Commissioner (supra) the said decision only reiterated that money paid under a mistake of law comes within the term mistake in Sec. 72 of the Indian Contract Act and there was no question of estoppel when the mistake of law was common to both the assessee and the taxing authority. There is no dispute on this aspect. It is now well settled by a catene of decisions of the Supreme Court that when both the sides are labouring under a mistake of law and or fact claim for restitution under Sec. 72 of the Act lies. There is no dispute on this aspect. It is now well settled by a catene of decisions of the Supreme Court that when both the sides are labouring under a mistake of law and or fact claim for restitution under Sec. 72 of the Act lies. However the further question as to who is entitled to restitution was not considered either in the case of State of Kerala v. Alluminium Industries of in Sales Tax Commissioner (supra) and hence these decisions cannot be of any assistance to the learned Advocate for the plaintiff in the present case. ( 38 ) IT is now time for us to refer to the judgments of other High Courts on which strong reliance was placed by the learned Advocate for the plaintiff. Our attention was invited to two judgments of the Bombay High Court. In the case of Rapidur (India) Ltd. v. Union of India and Others 1987 (27) Excise Law Times 222 (Bom.) a Division Bench of the Bombay High Court. (Panaji Bench) relying upon the Supreme Court decision in D. Cawsjis case (supra) took the view that the said decision was an authority for the proposition that if tax is paid under a mistake of law or is collected without authority of law the same has in all cases to be refunded to the party irrespective of the time when the tax was paid and that there is no provision under which the Court could deny refund of tax even if the person who paid it had collected it from his customers and has no subsisting liability or intention to refund it or for any reason. It is impracticable to do so. The Division Bench of the Bombay High Court speaking through Dr. Couto J. read in the decision of the Supreme Court in D. Cawasjis case (supra) s binding ratio to the aforesaid effect which according to the learned judge of the High Court was the law declared by the Supreme Court under Act. 141 of the Constitution and even on the assumption that the observations in D. Cawasjis case (supra) were obiter in nature they were held to be binding on the High Court. 141 of the Constitution and even on the assumption that the observations in D. Cawasjis case (supra) were obiter in nature they were held to be binding on the High Court. Now we have already shown earlier while discussing D. Cawasjis case (supra) that the said decision of the Supreme Court does not contain any ratio to the effect that whether burden of tax is passed on to the consumers or not once it is shown that it was illegally collected by the taxing authority it had to be refunded to the person from whom tax was collected. We have shown that the said decision did not consider the question whether tax had got to be refunded to the party from which it is collected even without showing that the party who claims refund had suffered any legal injury or not within the meaning of Sec. 72 of the Contract Act. We have also shown that D. Cawasjis case (supra) did not contain any obiter dicta on this aspect. In that view of the matter reliance placed by the Division Bench of the Bombay High Court (Panaji Beach) on the aforesaid decision in D. Cawasjis case (supra) cannot be of any assistance to the learned Advocate for the plaintiff. With respect we cannot agree with the observations of the Bombay High Court in the aforesaid report at para 14 where it is stated that the Supreme Court has already dealt with this question in D. Cawasjis case (supra) and has laid down law on the point. ( 39 ) WITH utmost respect we are of the opinion that in the case of Rapidur (India) Limited v. Union of India and Others (supra) reported in 1987 (27) Excise Law Times 222 (Bombay) Division Bench of the Bombay High Court (Panaji Bench) has not read judgment of the Supreme Court in the case of D. Cawasji (supra) as per the guidelines laid down by the Supreme Court itself. ( 40 ) IN the case of ITC Ltd. v. M. K. Chipker 1985 (22) Excise Law Times 334 (Bombay) there was a difference of opinion between Lentin and Sawant JJ. ( 40 ) IN the case of ITC Ltd. v. M. K. Chipker 1985 (22) Excise Law Times 334 (Bombay) there was a difference of opinion between Lentin and Sawant JJ. and thereafter the matter was placed before P. S. Shah J. who concurred with Lentin J. and took the view that petition under Art. 226 of the Constitution for refund of excise duty paid under mistake of law was maintainable and the question whether the tax was collected by the claimant from his customers or not was irrelevant for the purpose. For coming to this conclusion Shah J. in para 39 of the report took the view that unjust enrichment is not a valid defence to the claim for restitution in respect of the excess duty collected by the department without the authority of law. This question according to Shah J. was squarely answered by the observations of the Supreme Court in D. Cawasjis case (supra) we have already seen that D. Cawasjis case (supra) does not lay down this proposition. Consequently even this Bombay decision can be of no avail to the learned Advocate for the plaintiff. It is pertinent to note that in para S6 of the said decision the learned Judge has mentioned that there were many decisions of the High Courts including Delhi Gujarat Andhra Pradesh and Allahabad where the refund of excise duty was ordered to be returned for the benefit of and Payment to ultimate consumers. However in view of the learned Judge as the Supreme Court had ruled in D. Cawasjis case (supra) that such refund cannot be refused it had to be granted and the petitioner cannot be denied refund solely on the ground of unjust enrichment. We have discussed in details earlier the ratio of the decisions of the three :division Bench of this Court which have after elaborate consideration of various aspects of the matter centering round the legal requirements of Sec. 72 of the Contract Act have taken the view that unless the concerned plaintiff shows that it has suffered legal injury or prejudice it cannot merely on the ground that tax alleged to have been recovered is shown to be illegally recovered maintain a suit for refund under Sec. 72 of the Contract Act. As such the judgment of Shah J. in the aforesaid decision concurring with Lentin J. also cannot be of any assistance to the learned Advocate for the plaintiff. Various decisions of the High Courts taking a contrary view as listed in para 56 of the report was just mentioned by the learned Judge without discussing their ratio in detail and without considering how and why these decisions of the other High Courts taking a contrary view were not acceptable to the learned Judge who decided the aforesaid case. In our view therefore the above Bombay High Court decision cannot be of any avail to the learned Advocate for the plaintiff and in any case we are not inclined to follow the reasoning of the Bombay High Court judgments when they are based on a misreading of the ratio of the decision of the Supreme Court in D. Cawasjis case (supra) and when they run counter to the ratio of the decisions of three Division Bench of this Court which are binding on us and even otherwise with which was respectfully concur as discussed earlier. It must therefore be held that in the case of 1 T. C. Ltd. v. At. K. Chipker reported in 1985 (22) Excise Law Times 334 (supra) the Bombay High Court has not correctly interpreted the ratio of the Supreme Court decision in the case of D. Cawasji (supra ). Nothing more can be read in both the aforesaid judgments of the Supreme Court (D. Cawasji (supra) and S. T. O. v. Kanahaiya Lal (supra)) then what is precisely decided by the Supreme Court. The question as regards the ingredients to be provided for establishing claim under Sec. 72 of the Contract Act never arose in either of the aforesaid two cases decided by the Supreme Court. The Supreme Court never considered as to whether a plaintiff or petitioner in order to establish such a claim was required to prove loss or injury suffered by him. This was precisely the question at issue in the case of State of M. P. v. Vyankatlal AIR 1985 SC 901 . We cannot distinguish this decision of the Supreme Court on the ground that specific provisions of Sec. 72 of the Contract Act have not been referred to therein. This was precisely the question at issue in the case of State of M. P. v. Vyankatlal AIR 1985 SC 901 . We cannot distinguish this decision of the Supreme Court on the ground that specific provisions of Sec. 72 of the Contract Act have not been referred to therein. In the case of State of M. P. v. Vyankatlal (supra) the Supreme Court has in terms dealt with this question and has answered the same holding that when the burden of duty imposed was transferred to the purchasers claim made by factory answer cannot be entertained. It is further held that only the persons on whom lay the ultimate burden to pay the amount of duty would be entitled to get the refund of the Same. . ( 41 ) OUR attention was then invited to the case of Delhi Cloth and General Mills v. Union of India 1986 (26) ELT 294 (Delhi) and in the case of Gonterman Peipars (India) Ltd. v. Addl. Secretary to Govt. of India 1986 (26) ELT 471 (Cal. ). It is true that the aforesaid decisions have taken the view that even though tax amount is recovered from the consumers by the manufacturer he can maintain claim for refund only by showing that recovery was illegal. These decisions hare also proceeded with respect on a misreading of the decision of the Supreme Court in D. Cawasjis case (supra) and more is read therein than what actually emerges from it as discussed earlier. Consequently these judgment also cannot be of any assistance to the learned Advocate for the plaintiff as they fall in line with the Bombay decisions which as we have shown earlier cannot advance the case of the plaintiff. ( 42 ) AS a result of the aforesaid discussion it becomes clear that the suit as filed by the plaintiff was ex-facie not maintainable and did not disclose completed cause of action and was liable to fail. The plaintiff having not pleaded and proved requisite requirements of Sec. 72 of the Contract Act was required to be non suited. (REST of the Judgment is not material for the Reports.)APPEAL allowed: Cross objection dismissed. .