TaxTMI 
TaxTMI 
2017 (3) TMI 695
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....tes" to the 1st appellant under various heads (the details of which are not necessary for the present purpose). The respondent paid the amounts demanded by the 1st appellant 3. Subsequently, the respondent came to believe that it made payment in excess to the tune of Rs. 6,99,588.66 of the amount legally due from it. The respondent, therefore, addressed a letter dated 8.3.1984 calling upon the 1st appellant to refund the above mentioned amount. 4. The 1st appellant by his letter dated 13.8.1984 rejected the demand made by the respondent solely on the ground that such a claim was not made within a period of six months from the date of the payment, and therefore, in view of the declaration contained in Section 55 of THE ACT, the respondent was not entitled for the refund. The questions (a) whether the respondent made payments exceeding the amount legally due and payable; (b) if so, what is the amount paid in excess of the liability of the respondent, were not examined by 1st appellant. 5. Aggrieved by such a rejection, the respondent herein preferred a writ petition (No.771/1985) praying in substance to direct the appellants to refund the above mentioned amount with interest. 6. ....
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....rd of Trustees within the prescribed time of six months from the date of payment. This is a provision providing internal remedy under the Act through the Board for claiming refund. The Board is not the adjudicating authority and there is no detailed procedure or machinery provided for adjudication of refund claims. There is no provision of appeals. We also do not find in the provisions of the Act any express or implied bar of civil remedy in a regular court or Constitutional court. The provisions of section 55 of the Act do not give even a faint indication that refund application to the Board is the only available remedy and all other general remedies in court of law are barred. Intention of section 55 is apparent that if a refund application within the prescribed period is made to the Board, the Board may consider the claim but in our opinion, general remedy through court can never be said to be barred either expressly or impliedly. So far as constitutional remedy under Article 226 of the High Court is concerned, ordinary legislation cannot take away the said remedy. Even in a writ petition, in extraordinary circumstances, this court is competent to grand monetary relief if the a....
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....y contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).") One of the questions argued and adjudicated by this Court is whether such a statutory declaration would disable constitutional courts from ordering refund of the money in appropriate cases notwithstanding the fact that the claim was made beyond the period stipulated by the statute. This Court opined that though the jurisdiction of the constitutional courts (this Court and the High Courts) could not be taken away by the statutes, constitutional courts would still be guided by legislative policy evidenced by the provisions of the legislation and would exercise jurisdiction consistent with the legislative policy. (Mafatlal Industries Ltd. & Others v. Union of India & Others, (1997) 5 SCC 536, at p. 631 para 108: " ... While the jurisdiction of the High Courts under Article 226-and of this Court under Article 32-cannot be circumscribed by the provision of the said enactments, they will certainly have due regard to t....
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....his Court had an occasion to examine the said distinction in the context of the right of a landlord to evict his tenant under the Haryana Urban (Control of Rent and Eviction) Act, 1973. Section 13 of the Act stipulates that a tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of that Section. Sub-section (3) thereof stipulates that a landlord may apply for an order or direction to the tenant to put the landlord in possession. One of the provisos to Section 13(3) reads as follows: "Provided further that where the landlord has obtained possession of a residential building or rented land under the provisions of sub-clause (i) or sub-clause (v) of clause (a) or clause (b) he shall not be entitled to apply again under the said provisions for the possession of any other building or rented land of the same class;" Dealing with the interpretation of the said proviso, this Court recognised the distinction between bar on the 'right to evict' and the bar on the 'right to file the application' (the remedy) and considered the question - whether it is a bar on the right of the landlord to seek possession from the tenant o....
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....ars the remedy. (See: Syndicate Bank v. Prabha D. Naik & Another, (2001) 4 SCC 713, para 16 " ... limitation bars a remedy ..." Also See: N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, para 11 " Rules of limitation are not meant to destroy the rights of parties. ...") 19. Rights and obligations could owe their existence either to law, i.e. Constitution, statute or subordinate legislation or to a contract. Persons seeking enforcement of their substantive rights or the obligations owed to them by others seek the assistance of State in a civilised society (otherwise they may have to resort to violence). Judicial fora are established by law for the ascertainment of the tenability of the substantive rights and obligations and to secure their enforcement. The right to approach such fora for the enforcement of rights and obligations is called the right to sue. In State of Punjab v. Gurdev Singh, (1991) 4 SCC 1, the expression was explained as under: "6. ... The words 'right to sue' ordinarily means the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain r....
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....f this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action." It stipulates that any suit or other legal proceeding against a BOARD constituted under THE ACT or its employees etc. could be initiated by any person aggrieved by "anything done or purporting to have been done, in pursuance of this Act" only after complying with the following steps: (i) issuance of a notice in writing to the BOARD or its employees etc., as the case may be; and (ii) notice must state the cause of action for the suit or other legal proceeding. The decision of the BOARD under Section 55 to reject a claim for refund of "an overcharge" is a "thing done" falling within the sweep of Section 120. Subject to the other conditions and limitations imposed by law, such a "thing done" would be amenable to judicial scrutiny by an appropriate forum either in a suit or other proceeding. Such suit or other legal proceeding could be initiated only within six months from the date of the "accrual of the cause of action" after duly complying with the first two of the abovementioned condition....