096-NLR-NLR-V-66-THE-ATTORNEY-GENERAL-Appellant-and-S.-S.-ARUMUGAM-Respondent.pdf
L. B. DE SILVA, J.—The Attorney-General v. Arumugam
403
1963Present: Sansoni, J., and L. B. de Silva, J.
THE ATTORNEY-GENERAL, Appellant, and S. S. ARUMUGAM,
Respondent
8. C. 649/60—D. C. Trincomalee, 6131
Action against Crown—Notice of action given to Attorney-General by plaintiff—Validityof it in a second action instituted in respect of same cause of action—CivilProcedure Code, s. 461.
Co)%tract—Money paid under a mistake of law—Such payments are not recoverable—Condictio indebiti—Set-off.
Where the Attorney-General »-s representing the Crown is sued in respectof an act purporting to be done by him in his official capacity, the notice ofaction given to him by the plaintiff as required by section 461 of the CivilProcedure Code does not cease to be effective if the action happens to bewithdrawn on the ground that it has been instituted in a Court which has nojurisdiction and is subsequently instituted in the proper Court without anyfurther notice of action under section 461.
Where certain overpayments made by the defendant to the plaintiffunder a mistake of law in the interpretation of the terms of a contract providingfor payment for work done were sought by the defendant to be set off againstsums which subsequently fell due to the plaintiff—
Held, that money paid under a mistake of law cannot be recovered.
.ApPEAL from a judgment of the District Court, Trincomalee.Mervyn Fernando, Crown Counsel, for the Defendant-Appellant.
C. Ranganathan, with S. Rajaratnam, for the Plaintiff-Respondent.
Cur. adv. vult.
June 7, 1963. L. B. de Silva, J.—
The plaintiff-respondent was a contractor under the IrrigationDepartment in the Allai Extension Scheme under the contract P4. Thiscontract provided for monthly payments for work done. The plaintiffwas paid for all work done for the period December, 1952 to May, 1953.He has filed this action claiming a balance sum of Rs. 18,243 *69 on accountof work done during the period June 1953 to September 1953. Thelearned District Judge gave him judgment in a sum of Rs. 15,989 and costs.The defendant has appealed from this judgment.
404
L. B. DE SILVA, J.—The Attorney-General v. Arumugam
The plaintiff originally filed action on this claim in the District Court ofColombo. He gave notice of action as required by section 461 of the CivilProcedure Code. Pi is the notice by the plaintiff, Pla dated 12th Febru-ary 1959 is his proctor’s letter to the defendant forward ing PI and a draft(Plb) of the proposed action to be filed in the District Court of Colombo.The Colombo action was subsequently withdrawn as objection was takento the jurisdiction of the Court to hear that action. The present actionwas filed by the plaintiff without giving the defendant any further noticeof action under section 461.
Learned Crown Counsel urged in this appeal that this action must bedismissed for failure to comply with section 461 of the Civil ProcedureCode. After hearing Counsel on this preliminary point, we decided tohear the appeal on its merits. The section does not specifically state thatbefore every action filed on the same cause of action, a separate noticeshould be given. The purpose of the notice is apparently to give theAttorney-General an opportunity to consider the claim and settle itoutside Court if he considers it desirable to do so.
This section requires the notice to state only the cause of action, thename and place of abode of the person intending to file the action and therelief he claims. There are no local cases in which this question has beenconsidered. But this question was considered in an Indian Case ofVallabram Purshottam v. Secretary of State under similar provisions ofthe Indian Civil Procedure Code. Justice Broomfield held in that caseat page 23, “ it would amount to an extremely technical and unwarrantedconstruction of section 80 to hold that the notice given by the plaintiffin this case has ceased to be effective because of the false start which hemade by filing his suit before the expiration of two months and beingcompelled therefore to withdraw it We respectfully agree with hisdecision and disallow the preliminary objection to the filing of this action.
On the merits, the defence alleged that a large sum of money had beenoverpaid to the plaintiff on this contract in respect of the period December,1952 to May, 1953. From the amount due to plaintiff for work doneduring the subsequent period, the Irrigation Department withheld twosums of Rs. 15,173 49 and Rs. 3,070 20, being amounts surcharged asoverpayments totalling Rs. 18,243*69. The statement (D31) preparedand produced by an officer of the Irrigation Department, sets out thedetails of these surcharges. From this statement, it appears that exceptfor two sums of Rs. 248-76 against June and Rs. 727 *50 against July,1953, totalling Rs. 976*26, all the balance items of surcharge refer to theperiod ending May, 1953.
It was conceded in this Appeal, that the payments which were subse-quently surcharged, wore paid under a mistake of law in the interpretationof the terms of the contract providing for payment for work done.Plaintiff took up the position in this case that payments made under a 1
1 A. I. R. 1935 {Bombay) 21.
L. B. BE SILVA, J.—The Attorney-General v. Arumugam
405
mistake of Law, cannot be recovered and the Irrigation Department wasnot entitled to withhold any such alleged overpayment with respect to theperiod ending May, 1953, from money payable to him for work done duringthe subsequent period.
Save for the two items of surcharge for work done during June and July,1953, referred to earlier, the whole of the plaintiff’s claim for which heobtained judgment, to wit Rs. 15,989, is covered by such earlier surcharges.Learned Crown Counsel argued that such over-payments are recoverableand that the Irrigation Department was entitled to set off the same fromsums payable to the plaintiff for work done subsequently. He admittedthat Voet and certain other Roman Dutch Law jurists have taken theview that such payments are not recoverable whilst Grotius and severalother eminent jurists have taken the contrary view.
He also conceded that in South Africa such payments are not recover-able but said that South Africa had adopted the Roman Law on thisquestion and that we should not follow the South African Law on thismatter. He was unable to cite any Ceylon authority on this question.
Voet—Book XII, Title 6, section 7—(Gane’s translation, Vol. 2—p. 839)states, “ Condicito indebiti lies only for ignorance of fact, not of law.Then again it is not every ignorance of a payor which is enough for theaction for the return of what was not due, but only that which is ignoranceof fact, and does not appear to be slack or studied. If the payment of whatwas not due happened through ignorance of law, the truer view is that areclaim was denied by the Civil law ”. Reference has been given toauthors who favour this view.
After considering the question from the point of view of the RomanLaw and the contrary view of Vinnius and others, Voet has expressed hisview on this question of law.
In South Africa, the conflicting views of the Roman-Dutch commenta-tors were considered by Kotze C.J. in Booth v. The State 1. This report isnot available but reference to this decision has been made by Nathan inhis “ Common Law of South Africa,/>. He states, “This conflict of opinionwas carefully considered by Kotze C.J. in Booth v. The State in an ex-tremely learned judgment, the conclusion arrived at being that, inaccordance with the custom of South Africa, following a reasonableconstruction of Roman-Dutch Law, there is such a distinction as Voetmaintains ”. This view of the Law has thereafter been universallyaccepted in South Africa—See Heydenrych v. The Standard Bank ofS. A. Ltd.2
This view of the law has been accepted in Ceylon in Bogaars v. VanBuuren1 by Clarence, A.C.J. and Dias, J. We accordingly hold thatmoney paid under a mistake of law cannot be recovered. It was argued on
1 (1882) 2 S. A. R. 259.
(1924) S. A. L. R. (C. P. D.) p. 335.
406
L. B. DE SILVA, J.—The Attorney-General v. Arumugam
behalf of the Attorney-General that it was only a recovery by legalaction that was banned, but that it was open to a person who has paidmoney under such circumstances, to recover the money by any othermeans or claim a set-off for such money.
In considering set-off or compensatio Wille in “ The Principles of SouthAfrican Law ” 4th edition—p. 354 states that one of the conditions forset-off is that both debts are fully due—that is, both debts must be legallypayable. A natural obligation may be set off against a legal one. Buta prescribed debt could not be set off against a debt that came intoexistence after the lapse of the period of prescription. W( are unable totake the view that the claim of the appellant is a natural obligation ascontemplated in the Roman Dutch Law.
Out of the two sums totalling Rs. 18,243 • 69 which were surcharged, asum of Rs. 2,002-26 surcharged for not selecting the cheapest mode ofconveyance, was subsequently paid to the plaintiff. This would reducethe sum surcharged to Rs. 16,241 *43. This sum included the two itemsof surcharge referable to the period after 1st June, 1953. Of these, theitem of Rs. 248*76 was surcharged on the ground that the transport ofhand drills had been charged for on a Cart load basis instead of by weight.The other item of Rs. 727 *50 was surcharged on the ground that it wascharged on a Cart load basis instead of Lorry load basis.
The learned District Judge has given good reasons for allowing theseitems. These items refer to the transport of hand drills and machinespares which were sent from time to time and were urgently required at thework site. The plaintiff could not wait till a lorry load was available totransport these goods from the Railway Station to the work site. Thelearned District Judge has pointed out that the plaintiff would only beentitled to the absurdly low sum of Rs. 4*86. for transposting goodsweighing 4 cwt. over a distance of 27 miles if he was paid for the transportof these goods on a weight basis instead of payment on a cart load basis.We see no reason to interfere with his finding on this matter.
With regard to the shortage of Diesolene worth Rs. 815 67, we agreewith the finding of the learned District Judge that it was not due to anydefault or negligence of the plaintiff and this sum cannot be set off againsthim.
We accordingly dismiss the appeal with costs.
Sansoni, J.—I agree.
Appeal dismissed.
1 (i882) Wendt'8 Reports 209.